Forrest v. Gilley

ON PETITION FOR REHEARING

Plaintiff-appellee Trudi Gilley petitions for rehearing, claiming our earlier opinion in Forrest v. Gilley (1991), Ind.App., 570 N.E.2d 934 erred by misdefining the central issue of the case.

Throughout this action, Gilley has insisted it was the personal negligence of the defendant, not any propensity of his horse, which caused her injuries. She misses the point. In the case of a plaintiff’s fall from a defendant’s horse, it is of course the defendant’s act or omission, not the horse’s, which may lead to liability. The act or omission, though, is exactly that which we have already discussed: whether Forrest, as the horse’s owner, breached his duty of care to Gilley by allowing her to ride his horse. He could have breached that duty only if he knew the horse had a dangerous propensity, and since it is uncon-troverted that the horse had no dangerous propensity, there could be no breach.

In her petition for rehearing, Gilley not only persists with her illusory distinction between Forrest’s acts and the horse’s propensities, she has taken her fox hunt even farther afield to assert the horse is immaterial. She now defines the issue as whether “a person who provides an intoxicated person with additional alcohol for the specific purpose of putting her into a position where she will consent to sexual relations owes to that intoxicated person any duty to use reasonable care to protect her from injury.” Petition for Rehearing at 2. This issue fails for several reasons.

First, this question was not before the trial court, and questions not before the trial court are not before the appellate tribunal for review. Williams v. City of Indianapolis (1990), Ind.App., 558 N.E.2d 884, trans. denied. Second, Gilley has not filed a brief in support of her petition for rehearing. Of course, Ind. Appellate Rule 11(A) does not require briefs in support of rehearing petitions, but here, Gilley is asking us to rule on a novel issue without the benefit of argument, a task we are not overly disposed to undertake.1 Third, there is no causal relationship between Forrest’s alleged act and the injuries Gilley suffered: Gilley’s injuries are the result of her fall from a horse, not the result of horseplay.

The petition for rehearing is denied.

RATLIFF, C.J. and SHIELDS, J. concur.

. We remind Gilley she may not now file a brief in support of her petition for rehearing. A.R. 11(A) requires briefs be filed simultaneously with petitions for rehearing.