Michael Martin v. Colby Hayduk and Tiffany Stafford

FILED
Dec 27 2017, 8:03 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE –
Rebecca Eimerman COLBY HAYDUK
Zionsville, Indiana Brandy M. Kumfer
State Farm Litigation Counsel
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE –
TIFFANY STAFFORD
Leslie B. Pollie
Scott A. Weathers
Travis W. Montgomery
Kopka Pinkus Dolin PC
Carmel, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Michael Martin, December 27, 2017
Appellant-Plaintiff, Court of Appeals Case No.
32A01-1705-CT-974
v. Appeal from the Hendricks
Superior Court
Colby Hayduk and Tiffany The Honorable Stephenie D.
Stafford, LeMay-Luken, Judge
Appellees-Defendants. Trial Court Cause No.
32D05-1510-CT-129

Najam, Judge.

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 Statement of the Case
[1] Michael Martin appeals the trial court’s grant of summary judgment for Colby

Hayduk and Tiffany Stafford on Martin’s complaint, which alleged that

Hayduk and Stafford had negligently failed to confine and control their dogs

and that, as a direct result of their negligence, Martin was bitten by their dogs

and suffered serious bodily injuries while on Hayduk’s property. Martin

presents a single issue for our review, which we restate as the following two

issues:

1. Whether there are genuine issues of material fact that
Hayduk and Stafford were negligent per se when they
allegedly violated local ordinances regarding the
ownership of dogs.

2. Whether, under the common law, there are genuine issues
of material fact that Hayduk and Stafford were negligent.

[2] We reverse and remand for further proceedings.1

Facts and Procedural History
[3] Hayduk owns a residence in Brownsburg. The house is in a rural neighborhood

and is bordered on two sides by farmland and on a third side by another

residence. Hayduk has two dogs and has installed an in-ground electric or

1
We held oral argument in this case on November 1, 2017, at Triton Central High School in Fairland,
Indiana. We thank counsel for their excellent advocacy and extend our appreciation to the faculty, staff, and
students of Triton Central High School for their hospitality.

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 “invisible” fence that is located approximately thirty-five feet inside his property

line. Hayduk’s dogs wear electric collars and have never wandered beyond the

electric fence.

[4] Stafford, Hayduk’s girlfriend, lives in Zionsville with her five dogs. On June

30, 2015, Stafford was at Hayduk’s residence with all of her dogs and both of

his dogs. All five of her dogs wore electric collars and had been trained on the

electric fence.

[5] On that day, after Hayduk had left his home for work, Martin entered Hayduk’s

property, parked in Hayduk’s driveway, and walked toward the house. Martin

wanted to purchase a Volkswagen truck that was parked in the driveway. The

truck had a logo painted on the tailgate for a business called “Buggy Works.”

There were no “for sale” signs on the truck, and Martin had no other reason to

believe that the truck was for sale.

[6] About fifteen to twenty feet from the front door to the residence, at least five

dogs approached Martin. The dogs bit and scratched Martin, and, as a result,

he sustained several injuries. Martin then left for a local hospital, and, while on

his way, he called Hayduk to inquire about whether the dogs had all had their

shots. During that phone call, Hayduk told Martin that there were “beware of

dog” signs on his property. After the phone call, Martin drove past Hayduk’s

property to look for the signs and to take pictures of the property, and he

noticed a “beware of dog” sign on the northwest corner of the property and

another sign behind some foliage on the east side of the property by the

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 driveway, which was Martin’s original point of entry to the property. Martin

also noticed a sign in a window, but he could not determine what it said.

[7] On October 2, Martin filed a complaint against Hayduk and Stafford in which

he alleged that they had negligently failed to confine and control their dogs and

that, as a result, Martin was bitten and suffered serious bodily injuries. In their

answers, both Hayduk and Stafford, in relevant part, raised the affirmative

defense that Martin was at fault in having contributed to his injuries and that he

had incurred the risk of injury when he entered Hayduk’s property despite the

“beware of dog” signs.

[8] Later, during his deposition, Martin discussed his phone call with Hayduk

regarding the dogs. Martin testified that Hayduk had said multiple times

“that’s why the signs are there, that’s why the signs are there.” Appellant’s

App. Vol. II at 118. Martin went on to say: “I think [Hayduk] said, ‘We have

signs up. You didn’t see them?’ I said I obviously didn’t see them.” Id. at 118-

19.

[9] In response to interrogatories regarding whether the dogs had ever bitten others,

Stafford stated as follows: “In November of 2012, one of Tiffany Stafford’s

dogs bit her ex-husband’s hand. The incident happened when Michael Stafford

returned [on] leave from his military tour in Afghanistan. The dog had never

met Michael Stafford.” Appellant’s App. Vol. II at 203. Stafford further

responded that she

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 was bitten a few times when she first adopted one of her dogs in
the summer of 2014. For the first eight months after Tiffany
Stafford brought the dog home, she did not get along with other
dogs and would initiate fights. On a few occasions Tiffany
Stafford stepped in to break up the dogs and got bitten in the
process.

Id.

[10] Hayduk and Stafford filed motions for summary judgment alleging that Martin

was a trespasser on Hayduk’s property and, therefore, they did not owe a duty

to Martin other than to refrain from willfully or wantonly injuring him. They

further argued that, even if they owed a duty to Martin beyond that owed to a

trespasser, they were not negligent when they kept the dogs confined to the

property through the use of the electric fence. Hayduk and Stafford also

asserted that “[a]t the time of the alleged attack, signs were posted at the end of

the driveway and in the laundry room window to the left of the garage[,] among

other places.” Id. at 85, 97.

[11] In response, Martin asserted that there were genuine issues of material fact

regarding whether Hayduk and Stafford had violated local ordinances when

they had failed to confine the dogs properly and had kept more dogs on the

premises than permitted. In addition, Martin asserted that there was a genuine

issue of material fact as to his status on the land as well as to whether Hayduk

and Stafford had breached their duty of reasonable care under the

circumstances. He further claimed that the “beware of dog” signs located on

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 the property were covered by foliage. After a hearing, the trial court entered

summary judgment for Hayduk and Stafford. This appeal ensued.

Discussion and Decision
[12] Martin contends that the trial court erred when it entered summary judgment

for Hayduk and Stafford. Our standard of review is clear. The Indiana

Supreme Court has explained that

[w]e review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alteration and omission

original to Hughley). As the appellant, Martin has the initial burden on appeal

to persuade us that the grant of summary judgment was erroneous. Id.

However, “we carefully assess the trial court’s decision to ensure that he was

not properly denied his day in court.” Id.

[13] Our Supreme Court has recently reiterated that “[s]ummary judgment is rarely

appropriate in negligence cases because they are particularly fact-sensitive and

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 are governed by a standard of the objective reasonable person, which is best

applied by a jury after hearing all of the evidence.” Kramer v. Catholic Charities of

the Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).

However, we will affirm the “trial court’s entry of summary judgment if it can

be sustained on any theory or basis in the record.” DiMaggio v. Rosario, 52

N.E.3d 896, 904 (Ind. Ct. App. 2016).

[14] To prevail on his negligence claim, Martin must prove that Hayduk and

Stafford: 1) owed Martin a duty; 2) breached that duty; and 3) proximately

caused Martin’s injuries. Goodwin v. Yeakle’s Sports Bar & Grill, Inc. 62 N.E.3d

384, 386 (Ind. 2016). Here, the parties dispute the nature and extent of the duty

owed to Martin both under local ordinances and under our common law. The

parties also dispute whether Hayduk and Stafford breached their duty to

Martin. We address each argument in turn.

Issue One: Negligence Per Se

[15] Martin first contends that Hayduk and Stafford were negligent per se when they

allegedly violated two local ordinances. One of those ordinances limits the

number of dogs that owners may keep as pets. The other prohibits an owner

from permitting his animal to be at large.

[16] The Indiana Supreme Court has held that

the unexcused violation of a statutory duty constitutes negligence
per se “if the statute or ordinance is intended to protect the class
of persons in which the plaintiff is included and to protect against

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 the risk of the type of harm which has occurred as a result of its
violation.”

Kho v. Pennington, 875 N.E.2d 208, 212-13 (Ind. 2007) (citing Plesha v. Edmonds

ex rel. Edmonds, 717 N.E.2d 981, 987 (Ind. Ct. App. 1999)). Further:

[w]hen this court construes a municipal ordinance, we apply the
rules applicable to statutory construction. City of Jeffersonville v.
Hallmark at Jeffersonville, L.P., 937 N.E.2d 402, 406 (Ind. Ct. App.
2010) (citing City of Indianapolis v. Campbell, 792 N.E.2d 620, 624
(Ind. Ct. App. 2003)), trans. denied. The primary rule of statutory
construction is to ascertain and give effect to the intent of the
statute’s drafters. Id. (citation omitted). The best evidence of
that intent is the language of the statute, and all words must be
given their plain and ordinary meaning unless otherwise
indicated by the statute. Id. (citation omitted).

Mertz v. City of Greenwood, 985 N.E.2d 1116, 1121-22 (Ind. Ct. App. 2013).

Four-Dog Maximum Ordinance

[17] Martin first asserts that Hayduk and Stafford were negligent per se when they

violated a local ordinance that limits the number of dogs that they may keep as

pets. Section 90.04 of Title IX of the Code of Ordinances for the Town of

Brownsburg states that

[i]t is illegal and unlawful for any person . . . to keep any of the
following on any premises in the Town in numbers consisting of
more than a combined total of eight indoor and/or outdoor pets,
and limited further to a maximum of four dogs . . . , six months
of age or older, kept for the purposes of personal enjoyment as
pets, all of which have been sterilized (spayed or neutered) or
more than a combined total of three dogs . . . , six months of age

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 or older, kept for the purposes of personal enjoyment as pets, that
have not been sterilized.

[18] Martin contends that Stafford and Hayduk violated that ordinance when they

allowed seven dogs on the property at the time Martin was injured. However,

it is apparent from the plain language of the ordinance that the risk of harm that

the ordinance seeks to prevent is a risk to public health, not a risk of personal

injuries caused by the animals. The ordinance limits the number of pets that

can be kept on the premises “for the purposes of personal enjoyment,” which is

to prevent a pet owner from accumulating more pets than he can care for

properly. Further, because the ordinance is more restrictive based on the

reproductive capacities of pets kept on the premises, its purpose is also to

control the animal population, which is a public health concern. In any event,

there is nothing in the ordinance to suggest that it is intended to protect against

the type of harm Martin sustained, and Martin has not shown that Hayduk and

Stafford were negligent per se by violating this ordinance. See Kho, 875 N.E.2d

at 212-13.

At-Large Ordinance

[19] Martin next contends that Hayduk and Stafford violated a town ordinance that

prohibits the owner of an animal from permitting that animal to be at large.

Section 90.05 of Title IX of the Code of Ordinances for the Town of

Brownsburg states that “[n]o owner of any animal, licensed or unlicensed, shall

permit the animal to be at large.” Section 90.02 defines “at large” as

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 [a]ny animal, licensed or unlicensed, found off the premises of its
owner and not under the control of a competent person . . . or on a
leash or “at heel” beside a competent person and obedient to that
person’s command.

(Emphasis added.)

[20] Martin contends that Stafford’s dogs were “at large” and off the premises, in

violation of that ordinance, because they were found in Brownsburg instead of

at Stafford’s home in Zionsville. He further contends that there “is no evidence

that at any time any dogs which were maintained on the property were under

the control of a competent person, restrained within a motor vehicle . . . on a

leash[,] or ‘at heel’ beside a competent person and obedient to that person’s

command.” Appellant’s Br. at 11.

[21] But the plain language of this ordinance indicates that its purpose is to prevent

dogs from roaming freely. Here, the dogs were not roaming freely, but Hayduk

and Stafford had successfully confined the dogs to Hayduk’s property with the

electric fence. As such, the dogs were not “at large” but were under the control

of a competent person. Martin has not shown that Hayduk and Stafford were

negligent per se with respect to either of the local ordinances.

Issue Two: Common Law Negligence

[22] Martin next contends that the trial court erred when it granted summary

judgment in favor of Hayduk and Stafford because genuine issues of material

fact exist as to whether Hayduk and Stafford were negligent. Specifically,

Martin contends that genuine issues of material fact exist regarding the nature
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 and the extent of the duty Hayduk and Stafford owed to Martin and whether

they breached that duty.

Duty

[23] Martin asserts that the trial court erred when it granted summary judgment in

favor of Hayduk and Stafford because a genuine issue of material fact exists as

to whether Martin was an invitee or a trespasser. However, in dog-bite cases,

this court “has consistently applied a negligence standard without regard to

whether the victim was an invitee, licensee, or trespasser on the land on which

the dog was maintained.” Plesha, 717 N.E.2d at 987. The standard of care

owed by a dog owner to a third party is simply a duty of reasonable care. Id.

Thus, whether Martin was an invitee, licensee, or trespasser on the property is

not a material question in this appeal. Rather, it is settled that, as a matter of

law, Hayduk and Stafford owed Martin the duty of reasonable care. Id.

Breach of Duty

Electric Fence

[24] Martin next contends that the designated evidence establishes a genuine issue of

material fact regarding whether Hayduk and Stafford breached their duty of

reasonable care under the circumstances. In Indiana,

[t]he common law presumes that all dogs, regardless of breed or
size, are harmless. Poznanski v. Horvath, 788 N.E.2d 1255, 1257
(Ind. 2003); Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993). This
presumption can be overcome by evidence of a known vicious or
dangerous propensity of the particular dog. Ross, 619 N.E.2d at
914. The owner or keeper of a dog who knows of any vicious

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 propensity is required to use reasonable care in those
circumstances to prevent the animal from causing injury. Id.
Furthermore, the owner of a dog is expected to use reasonable
care to prevent injury that might result from the natural
propensities of dogs. Id. “Thus, whether the owner or keeper of
the animal is aware of any vicious propensity, the legal
description of the duty owed is the same: that of reasonable care
under the circumstances.” Id.

Cook v. Whitesell-Sherman, 796 N.E.2d 271, 275 (Ind. 2003). “A dangerous

propensity is a tendency of the animal to do any act which might endanger the

safety of persons or property in a given situation.” Ross, 619 N.E.2d at 914.

[25] In their motions for summary judgment, Hayduk and Stafford each asserted

that they did not breach their duty of care to Martin because they had an

electric fence around the property and they had trained all of the dogs on the

fence. On appeal, Martin asserts that the designated evidence shows that some

of the dogs had a known vicious or dangerous propensity and, as such, the use

of the electric fence did not in itself satisfy Hayduk and Stafford’s duty of care

to others on the premises.

[26] This court has previously addressed what measures a dog owner must take to

fulfill his duty of reasonable care where a dog has known dangerous

propensities. In Ross, the defendant, Lowe, confined his dog either to his house

or back yard, which contained a six-foot-high wooden fence. A postal worker

noticed that Lowe’s dog became very agitated when the postal worker

approached the house and the dog would jump up and down and would strain

against the window screen or the fence. One day, a meter reader arrived at

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 Lowe’s home to read the meter when Lowe had left his dog in the care of his

twelve-year-old daughter. The meter reader used a hand-held computer that

warned him of any problems at a given house. Lowe’s house was coded as

“having a ‘bad dog.’” Id. at 913. As such, the meter reader asked Lowe’s

daughter to confine the dog to the house, and he then entered the back yard.

The dog escaped through the storm door into the back yard, jumped on the

meter reader, and knocked him down. The meter reader sustained a dislocated

shoulder and other injuries, and he sued Lowe. Following a judgment on the

evidence, the Indiana Supreme Court held that confining a dog behind a fence

is not, as a matter of law, necessarily sufficient to establish that a dog owner

exercised reasonable care in controlling the dog. Id. at 915.

[27] Here, Martin asserts that the designated evidence shows a genuine issue of

material fact regarding whether the dogs had vicious or dangerous propensities.

We must agree. It is possible for the trier of fact to conclude from the

designated evidence that Stafford knew of the vicious or dangerous propensities

of one or more of her dogs as her dog had attacked her ex-husband, had bitten

her a few times, and had bitten other dogs. Here, a reasonable fact-finder could

conclude that one or more of Stafford’s dogs were known for their vicious or

dangerous propensities and that confining the dogs to the property using only

an electric fence was not sufficient under the circumstances. Thus, a reasonable

fact-finder could conclude that Hayduk and Stafford breached their duty of

reasonable care under the circumstances when they let the dogs roam freely on

the property despite those propensities. See, e.g., id.

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 Incurred Risk

[28] In their motions for summary judgment in the trial court, Hayduk and Stafford

asserted that Martin incurred the risk of injury when he entered the property

despite the “beware of dog” signs.2 We note that, since Indiana’s adoption of

the Comparative Fault Act, there has been some question about the application

of the doctrine of incurred risk. Specifically, there have been questions about

whether that doctrine wholly bars a plaintiff’s recovery by negating a duty owed

to the plaintiff or whether it instead goes to the allocation of fault.

[29] The Indiana Supreme Court provided clarity on this issue in Pfenning v.

Lineman, 947 N.E.2d 392 (Ind. 2011). In Pfenning, the Court held that

[u]nder Indiana’s Comparative Fault Act, a plaintiff’s recovery
will be diminished or precluded depending upon the degree of the
plaintiff’s own fault. See Ind. Code §§ 34-51-2-5, -6. Such fault
includes “any act or omission that is negligent, willful, wanton,
reckless, or intentional toward the person or property of others.
The term also includes unreasonable assumption of risk not
constituting an enforceable express consent, incurred risk, and
unreasonable failure to avoid an injury or to mitigate damages.”
Ind. Code § 34-6-2-45(b).

Id. at 399-400 (emphasis added). Thus, to resolve the issue of liability for a tort

in Indiana, “a foremost consideration must be the Indiana General Assembly’s

2
While incurred risk was not briefed by the parties on appeal, this issue was raised in the motion for
summary judgment in the trial court, the court entered a general judgment in favor of Hayduk and Stafford,
and we will review the record on appeal to determine if the grant of summary judgment can be sustained on
any theory or basis in the record. DiMaggio, 52 N.E.3d at 904. We will also review the record on appeal to
ensure that the nonmoving party was not denied his day in court. Hughley, 15 N.E.3d at 1003.

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 enactment of a comparative fault system and its explicit direction that ‘fault’

includes assumption of risk and incurred risk.” Id. at 403 (quoting I.C. § 34-6-2-

45(b)).

[30] The Pfenning Court further stated that “[i]ncurred risk . . . cannot be a basis to

find the absence of a duty on the part of the alleged tortfeasor.” Id. at 400.

However, “‘[w]hile a plaintiff’s conduct constituting incurred risk thus may not

support finding a lack of duty, such conduct is not precluded from

consideration in determining breach of duty.’” Id. (quoting Smith, 796 N.E.2d

at 245). A “[b]reach of duty usually involves an evaluation of reasonableness

and thus is usually a question to be determined by the finder of fact in

negligence cases.” Id. at 403.

[31] In the present case, the question of incurred risk is, in effect, a question of

whether and, if so, to what extent, Martin had any contributory fault when he

entered the property notwithstanding the “beware of dog” signs. “The concept

of incurred risk (and its analogue, assumption of risk) is centered on a plaintiff’s

‘mental state of venturousness’ and ‘demands a subjective analysis of actual

knowledge.’” Id. at 400 (quoting Smith, 796 N.E.2d at 244) (emphasis added).

Thus, to determine whether Martin incurred the risk of his injuries, we must

assess whether the designated evidence shows that Martin actually knew that

dogs were on the premises when he entered.

[32] It is undisputed that there were at least three “beware of dog” signs on the

property. However, during his deposition, Martin testified that, “I think

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 [Hayduk] said, ‘We have signs up. You didn’t see them?’ I said I obviously

didn’t see them.” Appellant’s App. Vol. 2 at 119. That is, Martin’s deposition

testimony, which was within the designated evidence, creates a genuine issue of

material fact with respect to whether he had actual knowledge that there were

dogs on the property when he entered. And our Supreme Court has made clear

that self-serving testimony, by itself, can be sufficient to defeat summary

judgment. Hughley, 15 N.E.3d at 1004.

[33] Martin’s deposition testimony notwithstanding, it is undisputed that Martin

entered the property via the driveway. A photograph of the “beware of dog”

sign at the end of the driveway appears to show that the sign at that location

was obscured by foliage. Appellant’s App. Vol. II at 169. The presence of a

warning sign covered with foliage would defeat the purpose of the sign, and a

trier of fact could conclude that a person entering the property would not have

had actual knowledge of the risk because the sign was obscured.

[34] While there were other signs, the designated evidence does not establish as a

matter of law that Martin observed them. Thus, there is a genuine issue of

material fact concerning whether Martin had actual knowledge of the risk of the

dogs when he entered the property. We note, however, that the designated

evidence does show that Martin saw the signs when he returned to the property.

It is for a jury to decide whether, considering all of the evidence, Martin’s

testimony that he did not observe the signs before he entered the property is

credible. The jury may conclude that a reasonable person would have seen the

signs and, as such, that Martin’s assertion that he did not see the signs lacks

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 credibility. These questions of fact cannot be answered as a matter of law on

summary judgment.

Conclusion

[35] We reverse the trial court’s entry of summary judgment for Hayduk and

Stafford. We hold that Martin has not shown that Hayduk and Stafford were

negligent per se for violating the Brownsburg ordinances, but there are genuine

issues of material fact regarding whether Hayduk and Stafford breached their

duty to Martin and whether Martin incurred the risk of injury. Thus, we

reverse the trial court’s entry of summary judgment for Hayduk and Stafford

and remand for further proceedings.

[36] Reversed and remanded for further proceedings.

Baker, J., and Altice, J., concur.

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