No Zeke's best defense would be that she was a trespasser...therefore not entitled to collect any damages under Texas law. Trespassing is an affirmative defense...which means that even if every single fact she said alleged in her Original Petition was true...she still could not collect a penny because her trespassing, under Texas modified comparative negligence rule, would probably put her more than 51% at fault...and therefore she would collect nothing.
"...but for your trespassing lady, you would not have been bitten by my dogs even if I did have some fault."
How does Zeke prove that she was a trespasser under CIVIL Texas law?
1. Intent (easy to prove...unless she was pushed onto his property) AND 2. lack of authorization/consent (she was not supposed to be at my house at that date or that time or she also had to notify me prior to entering my property).
That is why her attorney said what he said about her not adhering to company policy. It makes PERFECT sense: "Look lady, your own company's policy said that you have to give us a call 15 minutes prior to entering..." and because you didn't...your entrance was unauthorized...therefore trespassing...you collect nothing.
Once again...CIVIL trespassing...NOT CRIMINAL trespassing.
Sure, if she can prove that Zeke let her in or that an objective person would have believed that they were authorized to enter the property given the facts (implied consent), then authorization is given, and she would not be guilty of the civil tort of trespassing.
I was a paralegal for an attorney firm with 4 offices in the State of Florida.
I was not an attorney but there was many things I had to understand and research for my 10 attorneys.
I think you check the property for video evidence. Because it was back in March, the tapes may not exist now.
I would then interview the defendant and defined what was written, implied or what the accepted procedure in the past. That I believe then becomes the assumed procedure even if it has been changed because of implied consent.
This is all simple enough to establish where things come down according to the law.
A judge will consider any circumstances that occurred that affected the parties actions that have a bearing on the outcome.
I assume this is a gated community. So the association should have rules and bylaws for pets that are allowed, what type, how big and how many are allowed. If Zeke has complied then he should be fine here.
There are always exceptions. That is why there is homeowners insurance. Zeke no doubt has personal liability on himself in the millions. He should just let the attorneys do their thing.
I worry about the person and the dogs. The person needs help with the insident to be made whole. The dogs need to be protected as they are doing their function as guard dogs and pets. I do not want to see them put down or any adverse event on them as a result.
We live in a world where the unexpected happens every day. Just hope it does not happen to you.
Now that’s the type of compassion we need around here. Someone who actually cares about more than just a player and a game.
