Poznanski Ex Rel. Poznanski v. Horvath





ATTORNEYS FOR APPELLANTS:         ATTORNEYS FOR APPELLEE:


DANIEL H. PFEIFER                       LYNN M. BUTCHER

JON A. CRISS                            South Bend, Indiana
Sweeney, Pfeifer, Morgan & Stesiak
South Bend, Indiana                          DON G. BLACKMOND
                                        South Bend, Indiana





                                   IN THE


                          SUPREME COURT OF INDIANA



ALYSSA POZNANSKI, a Minor, by her       )
Parent and Next Friend, Heather Poznanski    )
and HEATHER POZNANSKI, individually,    )    Supreme Court Cause Number
                                        )    71S03-0111-CV-592
      Appellants (Plaintiffs),               )
                                        )
            v.                          )
                                        )    Court of Appeals Cause Number
GEORGE HORVATH,                   )     71A03-0101-CV-34
                                        )
      Appellee (Defendant).             )


                  APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                   The Honorable R.W. Chamblee, Jr., Judge
                        Cause No.  71D04-9811-CT-428



                               CIVIL TRANSFER



                                May 30, 2003

RUCKER, Justice
      The question we address in this opinion is whether the very act of  an
unprovoked biting by a dog that in the past displayed no vicious  tendencies
is sufficient by itself for a jury to infer that the  animal’s  owner  knew,
or should have known, of the dog’s vicious tendencies.   We  grant  transfer
to hold that it is not.

                        Facts and Procedural History

      In this summary judgment  action  the  following  facts  are  not  in
dispute.  George Horvath lives  in  South  Bend  and  owned  a  mixed-breed
sheepdog named Hey.  The dog had never bitten anyone and was well  behaved.
No one had ever complained about Hey, and he did not usually wander out  of
Horvath’s yard.  On July 23, 1997, Horvath allowed Hey  to  remain  outside
unattended.  The dog was neither on a leash nor confined by a fence.   When
Alyssa Poznanski and her mother walked by Horvath’s home,  Hey  bit  Alyssa
without provocation.  As a  result  Alyssa  suffered  a  cut  to  her  face
requiring stitches.  Among  other  things,  a  South  Bend  city  ordinance
provides in pertinent part “[e]very owner and/or his  agent  of  an  animal
within the City shall see that  his  or  her  animal  .  .  .  is  properly
restrained and not at large.”   Appellant’s  App.  at  91.   The  ordinance
defines “at large” as “any animal that is not under restraint.”  Id. at 92.
      In her individual capacity and on behalf of Alyssa  as  next  friend,
Alyssa’s mother (hereafter “the  Poznanskis”)  sued  Horvath  for  personal
injuries and medical expenses.  In response, Horvath  filed  a  motion  for
summary judgment.  Finding there was no genuine issue of material  fact  as
to whether Horvath knew or should have known of any vicious  tendencies  of
the dog, the trial court granted the motion.  The Poznanskis appealed.   On
review, the Court of Appeals reversed and remanded, finding genuine  issues
of material fact remained regarding whether Horvath:  (1)  knew  or  should
have known of the dog’s vicious propensities; (2) used reasonable  care  in
keeping the dog restrained; and (3) could be held liable  under  the  local
ordinance requiring proper restraint of animals.  Horvath sought  transfer,
which this Court previously granted.  Poznanski v. Horvath, 761 N.E.2d  423
(Ind. 2001).
                             Standard of Review

      Our standard of review is the same as that used in  the  trial  court:
summary judgment is appropriate only where the evidence shows that 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); Tom-Wat, Inc. v. Fink,
741 N.E.2d 343, 346 (Ind. 2001).  A genuine issue of material  fact  exists
where facts concerning an issue that would dispose of the litigation are in
dispute  or  where  the  facts  are  capable  of   supporting   conflicting
inferences.  Woodward Ins., Inc. v. White, 437 N.E.2d 59, 62  (Ind.  1982).
Any doubt as to a fact or an inference to be drawn is resolved in favor  of
the non-moving party.  Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000).
 We must carefully review a decision on a summary judgment motion to ensure
that a party was not improperly denied its  day  in  court.   Tom-Wat,  741
N.E.2d at 346.

                                 Discussion


      Relying on Layman v. Atwood, 175 Ind. App. 176, 370 N.E.2d 933 (1977),
the Court of Appeals in this case  concluded  that  Horvath  could  not  be
absolved of liability simply  because  his  dog  had  never  before  bitten
anyone.  According to the court, “the very fact that Hey bit Alyssa without
provocation is evidence from which a reasonable inference can be made  that
Hey had vicious tendencies.  Further, it may be inferred that  if  the  dog
had vicious tendencies based on this one incident, then similar to  Layman,
a question of fact exists as to whether Horvath  knew  or,  at  the  least,
should have known of these tendencies.”  Poznanski v. Horvath,  749  N.E.2d
1283, 1286 (Ind. Ct. App. 2001).
      In Layman, a father acting in his  individual  capacity  and  as  next
friend, sued Larry and Sherrod Atwood when  their  Saint  Bernard  bit  the
father’s eight-year-old daughter.  The Atwoods moved for  summary  judgment
that was  supported  by  affidavit.   Among  other  things,  the  affidavit
provided that the dog had always been  an  affectionate  companion  to  the
Atwood children and that prior to this incident had never bitten or  harmed
anyone in any way.  Layman, 370 N.E.2d at 934.  The trial court granted the
motion.  On review the Court of Appeals reversed.   Noting  that  the  dog-
biting incident was unprovoked, the court held:
      A jury could reasonably infer that the very act of  unprovoked  biting
      by the Atwoods’ dog was evidence of that animal’s vicious  tendencies.
      If an animal does,  indeed,  have  vicious  tendencies  a  jury  could
      reasonably infer that the animal’s owner knew  or,  at  least,  should
      have known of those vicious tendencies.


Id. at 935.
      We first observe that the “very act of unprovoked  biting”  by  a  dog
does not necessarily mean the dog  is  dangerous  or  vicious.   Under  our
common law, all dogs, regardless of breed  or  size,  are  presumed  to  be
harmless domestic animals.  Ross v. Lowe, 619 N.E.2d 911, 914 (Ind.  1993).
This presumption is overcome by evidence of a known or dangerous propensity
as shown by specific acts of  the  particular  animal.   Id.   A  dangerous
propensity is a tendency of the animal to do any act  that  might  endanger
the safety of persons  or  property  in  a  given  situation.   Id.   Thus,
depending on the facts of a particular case, a dog’s unprovoked biting  may
or may not be evidence of  the  dog’s  vicious  tendencies.   For  example,
although technically a “biting,” a playful nibble on the hand is one thing,
while a “teeth-baring” clamp on the arm is quite another.  In any event, in
this case the record shows that Hey either “bit” or “nipped” Alyssa in  the
face.  Appellant’s App. at 59.  Regardless  of  the  characterization,  the
incident resulted  in  Alyssa  receiving  hospital  and  medical  attention
including several stitches to her face.  Under these circumstances  a  jury
could reasonably conclude that Hey at least  exhibited  dangerous,  if  not
vicious, tendencies.
      The question remains whether in light of a dog exhibiting dangerous or
vicious tendencies for the first time, may a jury reasonably infer that the
dog’s owner knew, or at least should have known of  those  tendencies.   If
so, then this inference alone is  enough  to  create  a  genuine  issue  of
material fact to defeat a dog owner’s claim that he or she was  unaware  of
such tendencies.  We conclude however that a jury  may  not  make  such  an
inference.
      When wild animals are kept as pets, an owner is  liable  for  injuries
caused by the animal.  Irvine v.  Rare  Feline  Breeding  Ctr.,  Inc.,  685
N.E.2d 120, 125 (Ind. Ct. App. 1997), trans. denied.  This is  so  even  if
the owner had no prior knowledge of the animal’s propensity to cause  harm,
and even if the owner has exercised the utmost care in preventing harm.  In
essence, strict liability is  imposed  on  owners  of  wild  animals.   Id.
Owners of domestic animals may also 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.  Klenberg v. Russell, 125 Ind. 531,  25  N.E.  596,
597 (1890) (“[T]he owners of creatures which, as a  species,  are  harmless
and domesticated, and are kept for convenience or use, such as dogs .  .  .
are not liable for injuries willfully committed by them unless he is proved
to have had notice of the inclination of the particular animals  complained
of to commit such injuries.”); see also Artificial Ice & Cold  Storage  Co.
v. Martin, 102 Ind. App. 74, 198  N.E.  446,  448  (1935).   As  with  wild
animals this liability also attaches  regardless  of  the  amount  of  care
exercised by the owner.  However, unlike with wild animals, when the  owner
of a dog has knowledge of  its  dangerous  propensities,  “[the]  rules  of
liability are based upon negligence and not strict liability.”   Alfano  v.
Stutsman, 471 N.E.2d 1143, 1144  (Ind.  Ct.  App.  1984)  (quoting  Doe  v.
Barnett, 145 Ind. App. 542, 251 N.E.2d 688, 694 (1969)).  Because it is  an
action sounding in negligence, the defenses of contributory negligence  and
assumption of risk are  available  to  limit  this  liability.   Borton  v.
Lavenduskey, 486 N.E.2d 639, 642 (Ind. Ct. App. 1985), trans. denied.
      In certain instances, a cause of  action  in  negligence  can  survive
without  the  owner’s  actual   knowledge   of   the   animal’s   dangerous
propensities.  Indeed, such knowledge may even be constructive.   Doe,  251
N.E.2d at 692.  Nonetheless, when an owner does not know  of  his  animal’s
dangerous propensities, the rule is not that the jury may infer  or  impute
such knowledge.  Rather, “the rule is that the owner is bound to  know  the
natural tendencies of the particular class of animals to  which  [the]  dog
belongs.”  Ross, 605 N.E.2d at 788 (emphasis added).  If  the  propensities
of the class to which  the  dog  belongs  are  the  kind  which  one  might
reasonably expect would cause injury, then the owner  must  use  reasonable
care to prevent injuries from occurring.  Id.
      Thus, where there is no evidence of an owner’s actual  knowledge  that
his or her dog has dangerous propensities, the  owner  may  nonetheless  be
held liable provided there is evidence that the particular breed  to  which
the dog belongs has dangerous propensities.  And this is so even where  the
owner’s dog has never before attacked or bitten anyone.  See, e.g., Holt v.
Myers, 47 Ind. App. 118, 93 N.E. 1002, 1002-03 (1911) (observing  that  the
ferocious nature of a bulldog was sufficient  to  provide  the  owner  with
constructive notice of the dog’s dangerous propensities).   In  essence,  a
jury may not infer that an owner knew or  should  have  known  of  a  dog’s
dangerous or vicious propensities from the fact of a first time, unprovoked
biting.  Rather in such an instance, a jury may infer that the  owner  knew
or should have known of the dog’s dangerous or  vicious  propensities  only
where evidence shows that the particular breed to  which  the  owner’s  dog
belongs is known to exhibit such tendencies.
      In the case before us, there was no evidence presented  that  Horvath
had any knowledge that Hey exhibited  dangerous  or  vicious  propensities.
The record shows Hey was very well trained, behaved  well,  responded  when
Horvath called to him or told him to stay.   Hey  did  not  wander  out  of
Horvath’s yard or wander around the neighborhood.  The  record  also  shows
that Horvath never received any complaints about Hey’s conduct or behavior.
 And even though Horvath’s home was near an elementary school, Hey did  not
get excited or nervous when he heard children playing, screaming or  making
loud noises.  Nor was there any evidence presented to the trial court  that
the breed to  which  Hey  belonged,  a  mixed-breed  sheep  dog,  exhibited
dangerous or vicious propensities.  Accordingly, a  jury  could  not  infer
that Horvath knew that his dog was dangerous or vicious.
      On the question of whether there is any  genuine  issue  of  material
fact that Horvath knew or should have known of Hey’s vicious tendencies, we
affirm the judgment of the trial court.  The Court of Appeals’  opinion  on
this point is thus vacated.  We summarily  affirm  the  Court  of  Appeals’
resolution of the Poznanskis’ claim that Horvath could be held liable under
the local ordinance requiring proper restraint of animals.

                                 Conclusion


      We affirm the judgment of the trial court  in  part.   This  cause  is
remanded for further proceedings consistent with this opinion.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ ., concur.