Gary P. Byers v. Robert E. Moredock and Rhoda S. Moredock ( 2015 )

May 18 2015, 9:17 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Hilary A. Barnes Peter G. Wenzl
Christopher & Taylor Nationwide Mutual Insurance Company
Indianapolis, Indiana Indianapolis, Indiana
Scott A. Benkie
Benkie & Crawford
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gary P. Byers, May 18, 2015
Appellant-Plaintiff, Court of Appeals Case No.
34A04-1412-CT-560
v. Appeal from the Howard Superior
Court
Robert E. Moredock and The Honorable George A. Hopkins,
Judge
Rhoda S. Moredock,
Cause No. 34D04-1206-CT-595
Appellees-Defendants.
Brown, Judge.
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[1] Gary P. Byers appeals the trial court’s order granting summary judgment in
favor of Robert E. Moredock and Rhoda S. Moredock. Byers raises two issues,
which we consolidate and restate as whether the court erred in entering
summary judgment in favor of the Moredocks and against him. We affirm.
Facts and Procedural History
[2] On or about January 30, 2012, Byers was riding his motorcycle on County
Road West 250 South (the “Roadway”) in Howard County, Indiana, when a
dog ran into the Roadway and caused him to have an accident and sustain
injuries. The dog belonged to Jessica Stine, who lived in a house on a property
(the “Property”) owned by the Moredocks and leased to Tom Stine, and which
was located along the Roadway.
[3] On June 7, 2012, Byers filed a complaint against the Moredocks and Jessica
Stine. Byers alleged that Jessica was the owner of a dog later determined to be
a Rottweiler and that Jessica resided at the Property owned by the Moredocks.
He alleged that he was operating his motorcycle in a lawful and safe manner on
the Roadway, that a dog left the yard of the Property, which was not fenced in,
and entered the Roadway striking his motorcycle, that the motorcycle flipped
several times, and that he was ejected. Byers also alleged that the Moredocks
rent the residence on the Property to Jessica and utilize the pole barn on the
Property to work on furniture and other items, that Robert Moredock works on
the property on a fairly regular basis and was familiar with the Rottweiler
named Brutus, and that Robert stated he was aware that the dog did run loose
on the property and also that the dog did leave the yard on occasion. The
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complaint further stated that the Moredocks failed to comply with the
requirements of an ordinance enacted on or about February 18, 2008 (the
“Ordinance”), “having knowledge that the dog was not restrained by a leash
and not under complete control as required under the Ordinance,” and that the
Moredocks had a duty under the Ordinance “to restrain and harbor the dog
pursuant to the Ordinance and breached that duty by permitting the dog to run
at-large on the [Property].” Appellant’s Appendix at 10. Finally, Byers alleged
that the Moredocks failed to discharge their duty under the Ordinance and as a
result of their negligent acts and omissions, he incurred property damage and
injuries.
[4] On September 30, 2014, the Moredocks filed a motion for summary judgment
together with designated evidence and a brief in support of the motion. In their
motion, the Moredocks alleged that the dog was owned by Jessica, whose
father Tom was leasing the premises from them, they leased the premises to
Tom without a written agreement, they used a pole barn on the premises but
otherwise did not retain control of the premises, they had no knowledge of the
dog’s dangerous propensities, and thus that they owed no duty to Byers. The
designated evidence included the depositions of Robert and Rhoda Moredock.
[5] In his deposition Robert testified that the Property consisted of four acres which
he had inherited, he constructed the pole barn in 1987 and used it to refinish
furniture, he rented the Property five to seven times since 1996 and that, prior
to this lawsuit, he never used a written lease. He testified that his agreement
with Tom was that Tom would pay the rent, that two dogs lived at the house
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and that he never saw the dog that struck Byers’s motorcycle leave the Property
or chase down other animals. When asked about his weekly visit to the
Property, Robert stated he would pick up sticks, check or clean the pole barn,
and work on furniture. He indicated he did not enter the house on the Property
and that he would greet Tom or his family if they were outside, and that the
dogs were usually in the house and, if not, they were on a chain. When asked
the location of the chain, he testified one was on the front porch and that he
had placed a metal post in the backyard. He stated he considered the dog that
struck Byers’s motorcycle to be friendly and that the Stines had had the dog for
a couple of years.
[6] In her deposition, Rhoda indicated that approximately two times a month she
would accompany Robert to the Property and assist him with stripping and
sanding furniture in the pole barn. She also testified that she saw the dog loose
in the yard only when someone came out with the dog, that the dog was
friendly with her, and that she never saw the dog chase another animal or a car.
[7] On October 31, 2014, Byers filed a brief in response to the Moredocks’
summary judgment motion and a cross-motion for summary judgment together
with designated evidence and a brief. He argued that the Moredocks had a duty
under the Ordinance to restrain the dangerous dog and breached that duty by
permitting it to run at large on the Property they control.
[8] Byers’s designated evidence included interrogatory answers of the Moredocks,
the affidavit of Dan Jeffries, and the Ordinance. In their answers to
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interrogatories, the Moredocks indicated that the premises were not fenced, and
when asked on how many occasions and with whom they had seen the dog out
in the yard before, the Moredocks answered “[s]everal,” and “Jessica Stine.”
Id. at 128. When asked whether the dog had “a tendency to run into the
street,” they answered “[n]ot to our knowledge,” and when asked “[d]id you
ever observe the dog ‘chasing’ cars and/or motorcycles,” they answered “[n]o.”
Id.
[9] In his affidavit, Jeffries stated that he was hired by counsel for Byers to
investigate the accident and conduct interviews of witnesses, and that he
interviewed Robert Moredock in his driveway at his home. Jeffries’ affidavit
stated that, during the interview, Robert said that the Rottweiler is “a country
dog that runs lose [sic] a lot, but that usually stays in the yard. The only time
he leaves the yard is to chase a squirrel or another animal.” Id. at 129. The
affidavit also stated: “On another date, after my interview with Mr. Moredock,
and while I was investigating the scene of this accident, I witnessed a
Rottweiler, matching the description of the dog at issue in this case, running
lose [sic] with no visible form of leash or restraint.” Id.
[10] Section 3 of the Ordinance included in the designated evidence provides in part:
B. It shall be unlawful for any owner to allow, suffer, or permit an
animal to be at large within the unincorporated area of Howard
County.
*****
E. It shall be unlawful for any person to own, keep, or harbor a
dangerous dog or wild animal within the Howard County; provided
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this section shall not apply to animals under the control of a law
enforcement or military agency. For the purpose of this Ordinance, an
animal may be declared dangerous by the Department of Animal
Services.
Id. at 134-135. Section 1 of the Ordinance includes definitions of terms and
provides in part:
C. “At large” means elsewhere than on the owner’s premises, and:
1. Not restrained by a leash, OR
2. Not under the immediate and complete control of a person
capable of controlling such animal.
*****
F. “Dangerous Dog” means any dog that according to the records of
the Department of Animal Services:
(1) Has aggressively bitten, attacked, or endangered or has
inflicted severe injury or death on a human being on public or
private property; or
(2) Has been used primarily or in part for the purpose of dog
fighting or is a dog trained for dog fighting.
(3) Has been listed as a potentially dangerous dog by the
Department of Animal Services, and exhibits behavior
warranting listing as a Dangerous Dog.
*****
I. “Harbor” means the actions of any person who permits any animal
to habitually remain or lodge or to be fed within his home, store,
enclosure, yard, or place of business, or any premises on which such
person resides or controls. An animal shall be presumed harbored if it
is fed or sheltered for three (3) days.
*****
M. “Owner” means any person or persons owning or having the care,
custody, or control of any animal.
*****
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Q. “Restraint” means the securing of an animal by leash or confining
it within the real property limits by its owner.
Id. at 130-132.
[11] On November 12, 2014, the trial court entered an order granting summary
judgment in favor of the Moredocks and against Byers.
Discussion
[12] The issue is whether the trial court erred in entering summary judgment, which
is appropriate only where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C);
Mangold ex rel. Mangold v. Ind. Dep’t of Natural Resources, 756 N.E.2d 970, 973
(Ind. 2001). All facts and reasonable inferences drawn from those facts are
construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review
of a summary judgment motion is limited to those materials designated to the
trial court. Id. In reviewing a trial court’s ruling on a motion for summary
judgment, we may affirm on any grounds supported by the Indiana Trial Rule
56 materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).
We review a summary judgment order de novo. Bules v. Marshall Cnty., 920
N.E.2d 247, 250 (Ind. 2010). The fact that the parties make cross-motions for
summary judgment does not alter our standard of review. Sterling Commercial
Credit-Mich., LLC v. Hammert’s Iron Works, Inc., 998 N.E.2d 752, 756 (Ind. Ct.
App. 2013). Instead, we must consider each motion separately to determine
whether the moving party is entitled to judgment as a matter of law. Id.
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[13] Byers contends that the Moredocks had a duty under the Ordinance to restrain
the dog that struck his motorcycle and breached that duty by permitting the
dangerous dog to run at large on the Property they control. He points to the
definition of “harbor” in the Ordinance and argues that the Ordinance
contemplates that a person who controls the property has a duty to ensure the
public is not harmed by allowing a dog to run at large and that, by
distinguishing “keeping” and “harboring” from ownership, the Ordinance has a
broader reach than statutes or ordinances that impose liability solely on the dog
owners. Byers notes that Robert went to the Property weekly to pick up sticks
in the yard and clean and use the pole barn to work on furniture, there was no
lease, the Moredocks visited the Property whenever they wished, and that
Robert installed a post in the back to hold a chain to secure the dogs. He
contends that a jury could infer from these facts that Robert retained control not
only over the pole barn but also the yard and all outside areas of the Property.
In addition, Byers asserts that the fact that Robert installed a post to restrain the
dog shows that he knew of its dangerous propensity to run at large, and points
to Jeffries’ affidavit regarding Robert’s statement that the dog ran loose a lot,
usually stayed in the yard, and only left the yard to chase a squirrel or another
animal, and says that these facts lead to a reasonable inference that the
Moredocks knew of the dog’s propensity to run at large into the Roadway.
Additionally, Byers maintains that, by installing a post and chain in the yard,
Robert assumed a duty to restrain the dog, that the mere installation of the post
and chain was an insufficient means of restraining the dog, and that Robert
breached the duty he assumed when he installed the stake.
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[14] The Moredocks’ position is that summary judgment was appropriately granted
in their favor, they were not the owners or keepers of the dog and therefore did
now owe Byers a duty to properly confine it, the fact Robert installed a metal
post in the yard shows merely that he provided his tenants with a means by
which the dog could be restrained, and that there is no evidence whatsoever
that the Moredocks ever restrained the dog or had responsibility for its care.
They contend that the Ordinance refers to persons who own, keep or harbor “a
dangerous dog” and that there is no evidence the Moredocks were the owners
or keepers of the dog, that they ever harbored the dog, or that the dog was a
dangerous dog. Appellees’ Brief at 8. They further contend that they did not
retain control over the premises or have actual knowledge that the dog had a
dangerous propensity, and they retained only the right to use the pole barn and
there is no evidence the dog was ever kept or seen there.
[15] In his reply brief, Byers asserts that the Moredocks controlled the entire
Property except the inside of the house, and that if Robert retained no control
over the yard, he would not have had authority to place a metal post in, and
that according to the investigator the Moredocks knew the Rottweiler left the
yard chasing other animals.
[16] In Blake v. Dunn Farms, Inc., the Indiana Supreme Court held:
[I]t is the duty of the owner and the keeper of the animal to keep him
confined, and the mere possession or ownership of land from which an
animal strays is not sufficient to make the landowner liable, so long as
the landowner is not the keeper of such animal. This is and has always
been the law in Indiana. If the landowner is neither the owner nor
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keeper, he has no duty to confine or restrain the animal. If an animal
is allowed by its keeper to escape from its confinement and harm
results, that damage results from the negligent confinement, not from
the condition of the land. To the extent that the condition of the land
made it inadequate or unsuitable for confinement, the responsibility
for selecting an adequate method of confinement is upon the keeper,
not upon the landowner who neither owned nor kept the animal.
274 Ind. 560, 565, 413 N.E.2d 560, 563 (1980) (citations omitted).
[17] In Baker v. Weather ex rel. Weather, this Court stated that, in order to prevail on a
claim against the property owners who did not own the dog, the plaintiffs were
required to demonstrate both that the landowners “retained control over the
property” and “had actual knowledge that the [dog] had dangerous
propensities.” 714 N.E.2d 740, 741 (Ind. Ct. App. 1999) (citations omitted).
The absence of either component will result in a finding for the landowner.
Morehead v. Deitrich, 932 N.E.2d 1272, 1276 (Ind. Ct. App. 2010), trans. denied.
A dangerous or vicious propensity is “a propensity or tendency of an animal to
do any act which might endanger the safety of person or property in a given
situation.” Baker, 714 N.E.2d at 742 (citations omitted). It is not reasonable to
attribute dangerous propensities to a dog merely because it barks at strangers, a
person is afraid of the dog, or a city ordinance requires dogs to be restrained at
all times, and it is not reasonable to infer actual knowledge of dangerous
propensities merely because a dog may have strayed. See id.
[18] In Morehead v. Deitrich, we addressed the argument that the relationship
established by entering into a lease imposes upon a landlord the duty to ensure
the confinement of the tenant’s dog. 932 N.E.2d at 1279. We held that
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“foreseeability and public policy militate strongly against imposing a duty of
care upon a landlord with respect to animals owned or kept by his or her
tenants by virtue of entering into a lease with the knowledge that the tenant
owns a dog with vicious tendencies.” 932 N.E.2d at 1279. As to foreseeability,
we noted that “[i]mposition of a duty is limited to those instances where a
reasonably foreseeable victim is injured by a reasonably foreseeable harm.” Id.
(citation omitted). We then stated:
We agree that it is reasonably foreseeable that a vicious dog, upon
escaping its house or yard and encountering a stranger on a sidewalk,
may bite that stranger. We, however, cannot say that it is reasonably
foreseeable that that dog indeed will escape its confinement. It is not
the dog’s mere presence on leased property that causes harm. Rather,
it is the owner’s failure to adequately confine that dog. Thus, we do
not conclude that there is a high degree of foreseeability that leasing
property to the owners of vicious dogs will result in injury to third
parties.
*****
We agree that society has an interest in preventing dog attacks against
innocent parties, and therefore in keeping vicious dogs adequately
confined. It would be unreasonable, however, to impose a duty on
landlords to regulate tenants’ animals, where the owners clearly are in
the best position to do so.
Id. at 1280.
[19] With respect to Byers’ argument related to the Ordinance, we observe that
Byers did not allege in his complaint and does not argue on appeal that the dog
which struck his motorcycle was a “dangerous dog” under the Ordinance;
rather, his sole allegation and argument is that the dog was “at-large” as
prohibited by the Ordinance when it struck his motorcycle. See Appellant’s
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Appendix at 10. While Byers mentions Paragraph E of Section 3 of the
Ordinance, which is applicable to persons who own, keep, or harbor a
“dangerous dog,” he has not alleged or argued that the dog was a dangerous
dog under the Ordinance. Byers also cites to Paragraph B of Section 3 of the
Ordinance, which makes it unlawful for an “owner” to permit an animal to be
at large, and an owner is a person or persons owning or having the care,
custody, or control of the animal. See Appellant’s Appendix at 134. However,
the Moredocks designated evidence establishing that they were not persons
owning or having the care, custody, or control of the dog, nor were they keepers
of the dog. As a result, Paragraph B of Section 3 of the Ordinance did not
impose any duty on the Moredocks to confine or otherwise restrain a dog
owned or in the care of their tenant or the residents of the Property. See Blake,
274 Ind. at 565, 413 N.E.2d at 563 (“If the landowner is neither the owner nor
keeper, he has no duty to confine or restrain the animal.”); see also Morehead,
932 N.E.2d at 1279 (“The undisputed facts are that [the landowner] was neither
the owner nor the keeper of his tenants’ dog. Thus, as a matter of law, he had
no duty to confine or restrain the dog.”).
[20] Moreover, the fact that the Moredocks owned the Property or had entered into
a lease with Tom did not impose a duty on the Moredocks to ensure that any
dog on the Property was adequately confined or restrained or otherwise under
the control of the dog’s owner or keepers. While it may have been foreseeable
that upon escaping the Property, the dog may run into the Roadway and cause
an accident, it was not reasonably foreseeable that the dog would in fact escape
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its confinement or the control of its owner or keepers. See Morehead, 932
N.E.2d at 1280 (holding that it is not reasonably foreseeable that a dog indeed
will escape its confinement). As we held in Morehead, “[i]t is not the dog’s mere
presence on leased property that causes harm,” but rather “it is the owner’s
failure to adequately confine that dog.” Id. There is generally not a high degree
of foreseeability that leasing property to an owner or keeper of a dog, even
where the dog may generally need to be restrained, will result in injury to third
parties. See id. (concluding that there is not “a high degree of foreseeability that
leasing property to the owners of vicious dogs will result in injury to third
parties”).
[21] Additionally, the fact that Robert placed a metal post in the yard of the
Property so that his tenants had an additional option or method of confining
their dog does not render it reasonably foreseeable that the dog’s owner or
keepers would not in fact adequately restrain the dog or that it would escape its
confinement or the control of its owner or keepers and run into the Roadway
and cause injury. See Blake, 274 Ind. at 565, 413 N.E.2d at 563 (holding that
the responsibility for selecting an adequate method of confinement is upon the
keeper of an animal and not upon the landowner). As the owners of the
Property and landlords, the Moredocks were not expected to monitor the
tenants or residents of the Property so as to ensure that, as dog owners or
keepers, the tenants or residents did not fail to adequately confine or control
their dogs. See Morehead, 932 N.E.2d at 1280 (holding that it would be
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unreasonable to impose a duty on landlords to regulate the tenants’ animals
where the owners clearly are in the best position to do so).
Conclusion
[22] In sum, the provisions of the Ordinance cited by Byers were inapplicable to the
Moredocks and did not impose any duty on them to confine or restrain a dog in
the care of the tenant or residents of the Property; the Moredocks were not the
owners or keepers of the dog that struck Byers’s motorcycle and had no duty to
confine or control the dog on that basis; and the Moredocks as the owners of
the Property and landlords did not have a duty to ensure proper or adequate
confinement or control of the dog, or to monitor the tenant or residents of the
Property to ensure they properly or adequately confined or controlled the dog.
Accordingly, summary judgment in favor of the Moredocks and against Byers
was proper.
[23] For the foregoing reasons, we affirm the trial court’s entry of summary
judgment in favor of the Moredocks and against Byers.
[24] Affirmed.
Crone, J., and Pyle, J., concur.
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