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.