FILED
Feb 19 2019, 9:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
J. David Agnew William H. Kelley
Lorch Naville Ward LLC Thaddeus C. Kelley
New Albany, Indiana Kelley Law Offices LLC
Bloomington, Indiana
Kenneth Doane
Doane Law Office, LLC
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darlene Perkins, February 19, 2019
Appellant-Plaintiff, Court of Appeals Cause No.
18A-PL-2278
v. Appeal from the Washington
Circuit Court
Kathy Fillio, The Hon. Larry Medlock, Judge
Appellee-Defendant. Trial Court Cause No.
88C01-1703-PL-183
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 1 of 15
Case Summary 1
[1] When Kathy Fillio left her Salem home in 2016 to spend some time in Florida,
she left it and her animals under the care of her half-brother Dennis Slate.
When a goat became ill, Slate called Darlene Perkins for help. As Perkins bent
over to help the ill goat, a ram headbutted her, causing her to fall and break her
arm or wrist. Perkins sued Fillio for negligence, both parties moved for
summary judgment on the question of liability, and the trial court entered
summary judgment in favor of Fillio. The trial court reasoned that Fillio had
no way of knowing that Perkins would be on her property or that the ram had
any dangerous propensities. Perkins argues that the trial court should have
instead entered summary judgment in favor of her or, at the very least, that
there is a genuine issue of material fact which precludes the entry of summary
judgment in favor of Fillio. Because we conclude that Perkins’s designated
evidence does indeed generate a genuine issue of material fact as to Fillio’s
potential liability, we reverse and remand for further proceedings.
Facts and Procedural History
[2] Fillio owns a home on land in Salem (“the Property”), on which she has, at
various times, kept horses, cows, steers, sheep, goats, chickens, dogs, cats, and
1
We heard oral argument in this case on January 28, 2019, at Ben Davis High School in Indianapolis,
hosted by the Area 31 Career Center. We would like to thank the faculty, staff, and students of Ben
Davis and Area 31 for their hospitality and counsel for the high quality of their oral and written
advocacy.
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 2 of 15
guinea pigs. Fillio spends roughly half of her time at the Property and the other
half at a home in Florida. In August of 2016, Fillio was in Florida and left
Slate in charge of caring for her animals. Fillio later indicated that Slate’s
responsibilities were limited to feeding and watering the animals. While Fillio
was gone, a female goat fell ill, and Slate unsuccessfully tried to contact Fillio
by telephone. On August 21, 2016, Slate contacted Perkins for help because she
had more experience with farm animals, and Perkins agreed to come to the
Property. When Perkins arrived, she saw the bleating goat on the ground in a
pen with other animals, including a sheep. Slate invited her into the pen, and
they loaded the goat onto a cart. Slate pulled the cart while Perkins followed
behind, trying to keep the goat’s head inside. As it happens, the sheep in the
pen was a ram, i.e., an uncastrated male sheep. As Perkins bent over to assist
the female goat, the ram headbutted her, knocking her to the ground and
breaking her arm or wrist. Perkins’s injuries required two surgeries.
[3] On March 13, 2017, Perkins sued Fillio for negligence. On May 5, 2018, Fillio
moved for summary judgment. Fillio designated portions of hers and Perkins’s
depositions. On May 3, 2017, Perkins filed a response in which she also moved
for summary judgment on the question of liability, also designating portions of
hers and Fillio’s depositions as well as affidavits from herself and from Dr.
Dwayne Allen, DVM.
[4] According to Dr. Allen’s affidavit, rams are generally territorial and tend to
defend themselves, their territory, and females perceived to be in their herd by
headbutting unfamiliar animals or persons, tendencies of which sheep farmers
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 3 of 15
are generally aware. Perkins averred that she was aware that there was a sheep
in the pen but was not aware that it was a ram because it had no visible horns.
Perkins also averred that she had never owned a sheep or ram and was not
familiar with their natural propensities and that Slate had never warned her that
a ram might be protective and territorial toward an animal which it perceived to
be part of its herd. Fillio’s testimony makes it clear that she knew that the sheep
she owned was, in fact, a ram, despite its lack of horns.
[5] On August 29, 2018, the trial court entered summary judgment in favor of
Fillio:
[H]aving heard arguments on Defendant’s Motion for Summary
Judgement and being duly advised [the trial court] NOW FINDS
AND ORDERS:
1. That Kathy Fillio made arrangements to have her
brother feed her “domestic” livestock while she was
absent.
2. Domestic animal is defined in I.C. 15-17-2-26.
3. There was a lack of evidence indicating that the
Defendant knew the Plaintiff would be on her real
estate in particular inside the area where the Plaintiff
kept the ram and other sheep.
4. That there was no evidence that the ram had been
aggressive toward anyone in the past.
5. That the Defendant has not violated a duty of care to
the Plaintiff.
WHEREFORE, the Motion for Summary Judgment is hereby
GRANTED in favor of the Defendant and against the Plaintiff.
Appellant’s App. Vol. II p. 7.
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 4 of 15
Discussion and Decision
[6] The trial court entered summary judgment in favor of Fillio. The standard of
review of a summary judgment order is well-settled. 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. Ind. Trial Rule 56(C); Spudich v. N. Ind. Pub. Serv. Co., 745
N.E.2d 281, 289 (Ind. Ct. App. 2001). Summary judgment will be granted
where the evidence presented demonstrates that no genuine issue of material
fact exists, entitling the moving party to judgment as a matter of law. Ind. Trial
Rule 56(C). Summary judgment is intended to end litigation about which there
can be no factual dispute. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind. Ct.
App. 1995) (citing Liberty Mut. Ins. Co. v. Metzler, 586 N.E.2d 897, 899 (Ind. Ct.
App. 1992)). Once the movant for summary judgment has established that no
genuine issue of material fact exists, the nonmovant may not rest on her
pleadings but must set forth specific facts which show the existence of a genuine
issue for trial. Wade v. Norfolk & W. Ry. Co., 694 N.E.2d 298, 301 (Ind. Ct. App.
1998).
[7] We are bound by the same standard as the trial court and will consider only
those matters which were designated at the summary judgment stage. Spudich,
745 N.E.2d at 290. We will not reweigh the evidence but will liberally construe
all designated evidentiary material in the light most favorable to the nonmoving
party to determine whether there is a genuine issue of material fact for trial. Id.
The party who lost at the trial court has the burden to persuade the appellate
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 5 of 15
court that the trial court erred. Id. A trial court’s grant of summary judgment is
clothed with a presumption of validity. Wicker v. McIntosh, 938 N.E.2d 25, 28
(Ind. Ct. App. 2010). A grant of summary judgment may be affirmed by any
theory supported by the designated materials. Id. However, a trial court’s grant
of summary judgment may not be reversed on a ground which was not
presented to the trial court. Nance v. Miami Sand & Gravel, 825 N.E.2d 826, 834
(Ind. Ct. App. 2005).
[8] Perkins sued Fillio for negligence, a tort that requires proof of “(1) a duty owed
by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the
plaintiff resulting from the defendant’s breach.” Rhodes v. Wright, 805 N.E.2d
382, 385 (Ind. 2004). “Negligence will not be inferred; rather, all of the
elements of a negligence action must be supported by specific facts designated
to the trial court or reasonable inferences that might be drawn from those
facts.” Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind. Ct. App. 2002). “An
inference is not reasonable when it rests on no more than speculation or
conjecture.” Id. “A negligence action is generally not appropriate for disposal
by summary judgment.” Id. “However, a defendant may obtain summary
judgment in a negligence action when the undisputed facts negate at least one
element of the plaintiff’s claim.” Id.
I. Premises Liability
[9] Perkins argues that the trial court should have concluded, as a matter of law,
that Fillio was negligent for not taking measures adequate to ensure that her
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ram did not injure invitees2 such as Perkins. As a general rule, “a landowner
owes the highest duty to an invitee: a duty to exercise reasonable care for his
protection while he is on the landowner’s premises.” Burrell v. Meads, 569
N.E.2d 637, 639 (Ind. 1991).
The best definition of this duty comes from the Restatement
(Second) of Torts § 343 (1965):
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only if,
he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves
an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.
Id. at 639–40.
2
Fillio concedes that Perkins was invited upon the property by Slate but does not concede that she was an
invitee of Fillio. In our view, this distinction does not help Fillio, as it was foreseeable that Slate might have
to invite others onto the Property to help care for the animals. In fact, Fillio was aware Slate had done this in
2013, when Slate invited Perkins onto the Property to assist him with a sick steer. Although Fillio denied
that she knew Perkins was the person Slate invited onto the Property, she was aware that he had invited
someone in the past.
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 7 of 15
[10] Indiana law also specifically addresses the question of liability for injury caused
by domestic animals:3
[t]he owner of a domestic animal is not liable for injuries caused
by the animal unless the animal had dangerous propensities
known, or which should have been known, to the owner. Burgin v.
Tolle (1986), Ind. App., 500 N.E.2d 763; Doe v. Barnett (1969), 145
Ind. App. 542, 251 N.E.2d 688. A dangerous 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.”
Weaver v. Tucker (1984), Ind. App., 461 N.E.2d 1159, 1161
(citation omitted). If an individual animal lacks dangerous
propensities, “the rule is simply that the owner of a domestic
animal is bound to know the natural propensities of the particular
class of animals to which it belongs.” Burgin, supra, 500 N.E.2d at
766. In either event, the owner must exercise reasonable care to
guard against the propensities and to prevent injuries reasonably
anticipated from them. Borton v. Lavenduskey (1985), Ind. App.,
486 N.E.2d 639, reh’g. denied, 488 N.E.2d 1129, trans. denied.
Forrest v. Gilley, 570 N.E.2d 934, 935 (Ind. Ct. App. 1991), trans. denied.
[11] As the Indiana Supreme Court has explained in a dog-bite case,
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
3
It is undisputed that the ram that caused Perkins’s injuries qualifies as a domestic animal under Indiana
law:
(a) “Domestic animal” means an animal that is not wild
(b) The term is limited to:
(1) cattle, calves, mules, swine, sheep, goats, dogs, cats, poultry, ostriches, rhea, emus, or
other birds [or]
(2) an animal of the bovine, equine, ovine, caprine, porcine, canine, feline, avian, camelid,
cervidae, or bison species[.]
Ind. Code § 15-17-2-26.
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of reasonable care under the circumstances. Reasonable care
requires that the care employed and the precautions used be
commensurate with the danger involved under the circumstances
of a particular case. The safeguards to be used, the precautions to
be observed and the foresight to be exercised differ in each case,
and are usually matters to be resolved by the jury.
Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (citation omitted).
[12] Pursuant to Forrest and Ross, then, a duty to protect against harm caused by
domestic animals can be established by one (or both) of the following: (1) a
defendant’s knowledge that a particular animal has a propensity for violence or
(2) a defendant’s ownership of a member of a class of animals that are known to
have dangerous propensities, as the owner of such an animal is bound to have
knowledge of that potential danger. See Forrest, 570 N.E.2d at 935.
[13] Fillio’s argument is that the owner of a domestic animal that causes injury
cannot be held liable in the absence of specific knowledge that the animal in
question has exhibited dangerous tendencies. As we have seen, however, a lack
of that specific knowledge does not necessarily relieve a domestic animal owner
of liability. Fillio relies on language indicating that “‘[o]wners of domestic
animals may […] be held liable for harm caused by their pet but only if the
owner knows or has reason to know that the animal has dangerous
propensities.’” Gruber v. YMCA of Greater Indpls., 34 N.E.3d 264, 267 (Ind. Ct.
App. 2015) (quoting Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255,
1259 (Ind. 2003) (emphasis supplied by Gruber court removed)). This language,
originally from the Indiana Supreme Court’s decision in Poznanski, does not
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exclude binding an animal owner with knowledge that her animal belongs to a
class of animals known to have dangerous propensities. The Court’s
pronouncement specifically includes those owners who know or have reason to
know that their domestic animal has dangerous propensities, which would
include those without specific knowledge about a particular animal. Indeed, in
the very case on which Fillio relies, we affirmed the grant of summary judgment
in favor of the owner of a pig which had bitten a person only because (1) “the
evidence designated at summary judgment show[ed] that […] the pig had never
injured anyone or exhibited any dangerous propensities, including on the day in
question” and (2) “the plaintiffs designated no evidence that the particular breed to
which the pig belonged has dangerous propensities.” Gruber, 34 N.E.3d at 267–68
(emphasis added).
[14] Here, while Perkins did not designate any evidence that the ram had ever
exhibited any dangerous tendencies of which Fillio was aware, she did
designate evidence that rams, as a class, do have dangerous tendencies, at least
under certain circumstances. Specifically, Perkins designated Dr. Allen’s
affidavit, in which he averred that rams are generally territorial and tend to
defend themselves, their territory, and females perceived to be in their herd by
headbutting unfamiliar animals or persons. This evidence generates a genuine
issue of material fact as to the dangerous tendencies of rams, which, if true,
Fillio is bound to have known. This would in turn generate a genuine issue as
to whether Fillio took reasonable precautions under the circumstances to
prevent the ram from causing injury to invitees on her land. We conclude that
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the trial court erred in entering summary judgment in favor of Fillio on
Perkins’s premises-liability claim.
II. Negligent Entrustment and/or Supervision
A. Entrustment
[15] Perkins also contends that Fillio, as a matter of law, is liable under a theory of
negligent entrustment.
To prove a claim of negligent entrustment, a plaintiff must prove:
(1) an entrustment; (2) to an incapacitated person or one who is
incapable of using due care; (3) with actual and specific
knowledge that the person is incapacitated or incapable of using
due care at the time of the entrustment; (4) proximate cause; and,
(5) damages. Brewster v. Rankins, 600 N.E.2d 154, 158–59 (Ind.
Ct. App. 1992).
Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind. Ct. App. 1996). The gist of
Perkins’s argument is that Fillio was negligent, as a matter of law, for entrusting
the care of her animals to Slate. At issue is whether (1) Slate was incapable of
using due care to protect invitees from the animals and (2) whether Fillio
actually knew Slate to be incapable of using due care.
[16] Perkins designated evidence that Slate was in poor health and knew nothing
about caring for farm animals. Even if we assume that this is enough to
establish an incapacity to protect invitees from Fillio’s animals, Perkins has
failed to designate any evidence that Fillio had specific and actual knowledge of
this incapacity. We conclude that the trial court correctly entered summary
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judgment in favor of Fillio to the extent that Perkins made a claim of negligent
entrustment.
B. Supervision
[17] Perkins contends that Fillio, as a matter of law, is liable pursuant to a theory of
negligent supervision of her agent Slate. Perkins points to designated evidence
that Fillio had Slate look after her animals despite leaving him no instructions
for addressing an emergency, leaving no funds to pay a veterinarian should one
become necessary, and making herself difficult to contact. At the outset, it is
worth noting that Perkins bases this argument, in part, on Section 7.05 of the
Third Restatement of Agency, which provides that “[a] principal who conducts
an activity through an agent is subject to liability for harm to a third party
caused by the agent’s conduct if the harm was caused by the principal’s
negligence in selecting, training, retaining, supervising, or otherwise controlling
the agent.” RESTATEMENT (THIRD) OF AGENCY § 7.05 (AM. LAW. INST. 2006).
This provision, however, has never been adopted by Indiana courts, and, in
fact, the Indiana Supreme Court recently rejected an invitation to do so, albeit
in the slightly different context of a negligent hiring claim. See Sedam v. 2JR
Pizza Enters., LLC, 84 N.E.3d 1174, 1179 (Ind. 2017) (“Although the
Restatement (Third) of Agency [section 7.05] may find otherwise, Indiana has
developed a line of precedent according to [Tindall v. Enderle, 162 Ind. App.
524, 320 N.E.2d 764 (1974)] and section 317 of the Restatement (Second) of
Torts [regarding negligent hiring claims], and we find no reason to upset
reliance on this point.”) (footnote omitted).
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[18] Moreover, the case cited by Perkins to support her negligent supervision claim,
Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009), addresses the negligent
retention and supervision of an employee, and there is no designated evidence
that Slate was an employee of Fillio’s. See id. at 257 (“Negligent retention and
supervision is a distinct tort from respondeat superior; it may impose liability on
an employer when an employee ‘steps beyond the recognized scope of his [or
her] employment to commit a tortious injury upon a third party.’”) (citation
omitted). We conclude that Perkins has failed to produce sufficient authority to
support her argument that Fillio may be held liable for negligent supervision of
Slate.4
III. Vicarious Liability
[19] Finally, Perkins contends that Fillio should be held vicariously liable for the
negligence of Slate, her agent, even if she were not herself negligent. Section
214 of the Second Restatement of Agency provides as follows:
A master or other principal who is under a duty to provide
protection for or to have care used to protect others or their
property and who confides the performance of such duty to a
servant or other person is subject to liability to such others for
harm caused to them by the failure of such agent to perform the
duty.
RESTATEMENT (SECOND) OF AGENCY § 214 (AM. LAW. INST. 1958).
4
In any event, this claim, at least as stated here, is arguably indistinguishable from Perkins’s claim of
negligent entrustment.
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[20] Fillio argues that Perkins failed to argue this ground in the trial court and may
not now raise it for the first time on appeal. We agree that Perkins has waived
the issue for appellate review. See, e.g., Nance, 825 N.E.2d at 834 (“[A] trial
court’s grant of summary judgment may not be reversed on a ground which was
not presented to the trial court.”). Moreover, Perkins does not seem to claim,
even on appeal, that Slate was negligent, much less point to any designated
evidence that would support such a conclusion. Without the underlying
negligence of the agent, there can be no vicarious liability.
Conclusion
[21] We conclude that the trial court erred in granting summary judgment in favor
of Fillio on Perkins’s premises liability claim. Perkins designated evidence that
rams have dangerous tendencies as a class of animals, knowledge with which
Fillio would be charged pursuant to Indiana law, if true. There is, therefore, a
genuine issue of material fact as to whether rams are dangerous as a class of
animals and, if so, a genuine issue as to whether Fillio took reasonable
measures to prevent the ram from causing harm to invitees like Perkins.
Perkins, however, did not designate evidence sufficient to generate a genuine
issue of material fact as to negligent entrustment or negligent supervision.
Finally, Perkins did not preserve her claim of vicarious liability for appellate
review, a claim that is not supported by any designated evidence of underlying
negligence in any event.
[22] We reverse the judgment of the trial court and remand for further proceedings.
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Kirsch, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 15 of 15
Darlene Perkins v. Kathy Fillio
Combined Opinion