This section contains the nature of the case and procedural background.

Ewell, a nine-year-old girl, was attacked by a pit bull at a house. D was the owner and landlord of the rental house, and Martha Torres (D) was the tenant. The pit bull belonged to Torres' son, who was not a resident of the rental property. Torres sometimes kept the dog at the house. The lease agreement between D and Torres contained a clause prohibiting pets on the premises without the written consent of D. D could remove any unauthorized animal and give custody of the animal to local authorities. Ewell went over to the Torres' house to play with Torres' daughter, Georgina. As Ewell stood on the sidewalk outside the fence of the Torres' house, she was told by Georgina to 'agitate' the dog to distract it so that Georgina could leave the house and exit through the gate at the backside of the house. Ewell distracted the dog by running back and forth up and down the fence line. The dog broke through the fence and attacked Ewell, biting her numerous times on the legs. P sued Ds. D argued that he owed no duty because he was an out-of- possession landlord who had no control over the dog or the rental property. D and Torres each were found 50% liable. D moved for a new trial and it was denied. D appealed.

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