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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Michael Martin v. Colby Hayduk and Tiffany Stafford
Combined Opinion