Jeffrey Herbert v. Jacob Gardner, Ziaollah Loghmani, and Kamran Akhavan (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 31 2017, 6:52 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Michael E. Simmons GARDNER
William D. Beyers Robert S. Rifkin
Hume Smith Geddes Green & Rifkin, Blanck & Rubenstein, P.C.
Simmons, LLP Carmel, Indiana
Indianapolis, Indiana
ATTORNEY FOR APPELLEES
LOGHMANI & AKHAVAN
Robert A. Durham
State Farm Litigation Counsel
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Jeffrey Herbert, July 31, 2017
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1702-CT-391
v. Appeal from the
Marion Superior Court
Jacob Gardner, Ziaollah The Honorable
Loghmani, and Kamran James B. Osborn, Judge
Akhavan, Trial Court Cause No.
Appellees-Defendants. 49D14-1601-CT-3207

Kirsch, Judge.

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[1] Jeffrey Herbert (“Herbert”) appeals the trial court’s orders granting summary

judgment in favor of Jacob Gardner (“Gardner”) and Ziaollah Loghmani

(“Loghmani”) and Kamran Akhavan (“Akhavan”) (together, “Landlords”).

Herbert raises the following restated issues for our review:

I. Whether the trial court erred in granting summary
judgment in favor of Gardner despite certain Marion
County ordinances that Herbert contends are designed to
protect the public from dog attacks and dogs at large; and

II. Whether the trial court erred in granting summary
judgment in favor of Landlords because Herbert claims
that Landlords failed to properly maintain the fence.

[2] We affirm.

Facts and Procedural History
[3] In October 2015, Landlords owned a rental property at 945 East Morris Street

in Marion County, Indiana. At that time, Landlords had been renting the

property to Gardner for approximately seven or eight years. The property had a

front yard and a backyard, which was surrounded by a chain link fence that was

approximately three and a half to four feet high with latched access gates to

both the front and back yards.

[4] Gardner owned a dog named Chewbacca (“Chewy”), and Landlords were

aware that Gardner owned Chewy. Chewy was a neutered, fully vaccinated,

male, tan-colored, mixed breed dog with white spots on his chest and feet

typical of the boxer breed. In October 2015, Chewy was about two years old

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 and weighed between thirty-five and forty pounds. Chewy occasionally barked

from inside the fence at people who walked or biked past the property, but

never exhibited “vicious or aggressive behavior toward people” and had never

bitten or attacked anyone. Appellant’s App. at 66. No one had ever complained

to Gardner that Chewy had bitten or attacked them or shown any aggressive

behavior toward them. Id. Gardner had never seen Chewy act aggressively

toward people and had no reason to believe that Chewy had any vicious

tendencies. Id.

[5] Loghmani had met Chewy on prior occasions and found Chewy to be friendly

and never exhibited “dangerous propensities.” Id. at 32. Landlords had never

received any complaints related to Chewy. While Gardner was renting the

property, Loghmani would drive by the rental property every two to three

months to make sure the lawn was mowed, but did not enter the property

without notice to Gardner. Akhavan lives in China and has lived there for

approximately ten years.

[6] On October 18, 2015, Herbert was riding his bike in the alley adjacent to the

property. Chewy was in the yard and ran along the fence line barking at

Herbert as he was riding in the alley toward the street. When Herbert reached

the street, the dog had left the yard and “attacked” Herbert while he was on his

bike in the street. Id. at 48. As a result, Herbert fell off his bike and broke his

leg.

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[7] On the date of the incident, the fence and gates at the property were in good

condition. The fencepost at the northwest corner of the fenced yard was bent;

however, the bottom of the chain link fence extending both east and west of the

bent post was no more than a half an inch off the ground. Id. at 68. Gardner

had reported the damaged post to Landlords shortly after it happened. To

Gardner’s knowledge, Chewy had never escaped the fenced yard, and because

he lived on a busy street, Gardner kept Chewy on a leash when he walked him

outside the fenced yard. On the morning of October 18, Gardner left for work

at approximately 9:00 a.m., and at that time, Chewy was in the residence, the

gates to the fenced yard were closed and latched, and Gardner’s roommate was

inside the residence. When Gardner arrived home from work that afternoon

between 3:30 p.m. and 4:00 p.m., Chewy was inside the residence.

[8] Herbert filed a complaint for damages against Gardner, Loghmani, and

Akhavan, alleging that Chewy had escaped from the property Gardner rented

from Landlords and that Chewy had caused Herbert to have an accident on his

bicycle which resulted in injury to Herbert. Landlords and Gardner each filed a

motion for summary judgment. Herbert filed a motion for partial summary

judgment against Gardner. A hearing was held on the motions, and on

February 2, 2017, the trial court granted both Landlords’ and Gardner’s

motions for summary judgment. Herbert now appeals.

Discussion and Decision
[9] Herbert argues that the trial court erred in granting summary judgment in favor

of Gardner and in favor of Landlords. When reviewing the grant of summary
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 judgment, our standard of review is the same as that of the trial court. FLM,

LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citing

Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct.

App. 2005)), trans. denied. We stand in the shoes of the trial court and apply a

de novo standard of review. Id. (citing Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d

690, 695 (Ind. Ct. App. 2006)). Our review of a summary judgment motion is

limited to those materials designated to the trial court. Ind. Trial Rule 56(H);

Robson v. Tex. E. Corp., 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied.

Summary judgment is appropriate only where the designated evidence shows

there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a

fact is “material” if it bears on the ultimate resolution of relevant issues. FLM,

973 N.E.2d at 1173. We view the pleadings and designated materials in the

light most favorable to the non-moving party. Id. Additionally, all facts and

reasonable inferences from those facts are construed in favor of the non-moving

party. Id. (citing Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40

(Ind. Ct. App. 2005), trans. denied).

[10] A trial court’s grant of summary judgment is clothed with a presumption of

validity, and the party who lost in the trial court has the burden of

demonstrating that the grant of summary judgment was erroneous. FLM, 973

N.E.2d at 1173. We will affirm upon any theory or basis supported by the

designated materials. Id. When a trial court grants summary judgment, we

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 carefully scrutinize that determination to ensure that a party was not improperly

prevented from having his or her day in court. Id.

I. Gardner
[11] Herbert first contends that the trial court erred in granting summary judgment

in favor of Gardner because Gardner did not keep Chewy from escaping or

attacking Herbert as required by certain Marion County ordinances. Herbert

asserts that, although Gardner attempted to avoid responsibility under common

law analysis, such analysis is not necessary because there are two specific

Marion County ordinances that apply and state that, if a dog escapes, the owner

is responsible for injuries caused by the dog. Herbert alleges that these

ordinances impose a duty on Gardner to make sure that Chewy does not injure

anyone and to make sure that Chewy does not escape the property. He

maintains that the ordinances, therefore, support his claim that he can recover

damages from Gardner even if Chewy did not show prior dangerous

propensities.

[12] Under Marion County Local Ordinance section 531-102(a), “an owner or

keeper of an animal commits a violation of the Code if that animal is at large in

the city.” Under Marion County Local Ordinance 531-109(a), “an owner or

keeper of an animal commits a violation of the Code if that animal attacks or

injures a person who did not provoke the animal prior to the attack.” However,

these Marion County ordinances cited by Herbert do not specifically provide for

a private right of action to allow a lawsuit filed by a private individual to

enforce the ordinances. Instead, when a violation of the ordinances is found by
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 the city, a fine of up to $500 may be imposed or, under certain circumstances, a

court may order the animal to be forfeited or destroyed. Herbert has not cited

to any cases that hold that a violation of a city ordinance establishes negligence

per se and allows civil damages. Further, there is no evidence that Gardner was

even cited by the City of Indianapolis or Marion County for a violation of any

ordinance.

[13] In Indiana, the common law presumes that all dogs, regardless of breed or size,

are harmless. Cook v. Whitsell-Sherman, 796 N.E.2d 271, 275 (Ind. 2003) (citing

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. 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.

Id. When the owner or keeper has such knowledge, he is obligated to use

reasonable care to prevent the animal from causing injury or damage. 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. Cook, 796 N.E.2d

at 275. Therefore, 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.

[14] Here, no evidence was presented that Chewy had known vicious or dangerous

propensities or that he had ever shown aggressive or hostile behaviors toward

people. The designated evidence shows that Gardner had no knowledge that

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 Chewy possessed any dangerous propensities and had not received any

complaints about Chewy’s behavior. Gardner kept Chewy inside of a fenced

yard and did not knowingly allow Chewy to leave the yard unattended. We

conclude that, based on the designated evidence, Gardner was not aware of any

dangerous propensities of Chewy. Summary judgement was properly granted

in favor of Gardner.

II. Landlords
[15] Herbert next argues that the trial court erred when it granted summary

judgment in favor of Landlords because Landlords failed to properly maintain

the fence, which allowed Chewy to escape and attack Herbert. Herbert

contends that Landlords had a duty to maintain the fence and that the fence

post near the alley was “crushed” and could have allowed Chewy to escape

from the yard. Appellant’s Br. at 9. He also claims that, because there was

damage to the fence and Landlords knew that Chewy was on the property,

Chewy was a condition on the property that could foreseeably escape and injure

a passerby. Herbert, therefore, asserts that a factual dispute exists as to whether

Landlords’ failure to properly maintain the fence allowed Chewy to escape, and

summary judgement was not proper.

[16] Although Herbert asserts that Chewy was a dangerous condition on Landlords’

property that could foreseeably escape and create a duty under premises

liability, such an argument has previously been rejected by this court in

Morehead v. Deitrich, 932 N.E.2d 1272 (Ind. Ct. App. 2010), trans. denied. In

Morehead, the plaintiff argued that the tenant’s dog was a dangerous condition
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 under premises liability. Id. at 1277. This court stated that a “dangerous

condition” is defined as a “property defect creating a substantial risk of injury

when the property is used in a reasonably foreseeable manner.” Id. at 1278.

This court, therefore, held that the tenant’s dog was not a property defect. Id. at

1279. Additionally, in McCraney v. Gibson, 952 N.E.2d 284 (Ind. Ct. App.

2011), trans. denied, this court again rejected the plaintiff’s argument that the

landlord should be held liable for the acts of a tenant’s dog under the theory of

premises liability. Id. at 289. We, therefore, reject Herbert’s contention that

Chewy was a property defect and that the theory of premises liability should be

applied.

[17] “[I]n order to prevail against a landowner for the acts of a tenant’s dog, the

plaintiff must ‘demonstrate both that the landowner [ ] retained control over the

property and had actual knowledge that the [dog] had dangerous propensities.’”

Id. at 287 (quoting Morehead, 932 N.E.2d at 1276). The absence of either

component will result in a finding for the landowner. Id. Here, there is no

evidence in the record that Landlords knew that Chewy possessed any violent

propensities. Because Landlords need only prove the absence of one of the

prongs of the test, we find that they were entitled to summary judgment as a

matter of a law. The trial court did not err in entering summary judgment in

favor of Landlords.

[18] Affirmed.

[19] Mathias, J., and Altice, J., concur.

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