Goldberg v. Ruckstuhl , 408 So. 2d 374 ( 1981 )

PONDER, Judge.

Plaintiffs appealed the dismissal of their suit seeking reimbursement of veterinary expenses for treatment' of their pet poodle after it was attacked by dogs belonging to two defendants.¹

The sole issue is the assumption of risk by plaintiffs.

We reverse and render.

Plaintiffs left their small poodle in the care of a neighbor when they left on vacation. While the poodle was outside, admittedly with knowledge of the neighbor in charge and admittedly unleashed and unattended, but still on plaintiffs’ property, a dog belonging to each of the remaining defendants attacked and inflicted serious wounds on the poodle.

The lower court found that defendants’ control was “wanting” under Civil Code Article 2321 but denied liability because plaintiffs had assumed the risk by allowing the dog to be outside.

We agree that defendants’ conduct was wanting under Civil Code Article 2321. Holland v. Buckley, 305 So.2d 113 (La.1974).

We disagree that plaintiffs assumed the risk.

In the first place, there was no plea of assumption of risk, an affirmative defense. La.C.Civ.P. Art. 1005.

But even if it be found that the pleadings were enlarged by the evidence,² we do not believe the defense is viable. Under Dorry v. Lafleur, 399 So.2d 559 (La.1981), the risk must be knowingly assumed, and the knowledge is subjective. There is no evidence that plaintiffs or their agent had any knowledge of any risk of their pet being mauled by other dogs. We therefore believe that the trial court erred.

There was no issue raised as to the amount of the veterinary bill of $294.75.

For these reasons the judgment is reversed and there is now judgment in favor of the plaintiffs, Jack R. and Elinor R. Goldberg, and against the defendants Richard E. Ruckstuhl, Jr., and Brenda Elliott, in solido, in the amount of $294.75, plus legal interest thereon from date of judicial demand until paid. All costs are assessed to the defendants.

REVERSED AND RENDERED.

1 . The dismissal of a third defendant on a directed verdict was not appealed.

2 . We express doubt on that point too. Any evidence supporting the assumption of risk would, we believe, be admissible on other grounds.