Indiana Court of Appeals Reverses Trial Court in Dog Bite Case

The Indiana Court of Appeals recently reversed the grant of summary judgment to a dog owner in an Indiana dog bite personal injury case. In McElhany v. Grisham, Peggy McElhany (McElhany) was bitten by a pit bull-mix dog named Gus while working as a cashier at an Avon Rural King. Elizabeth Jordan (Jordan) owned Gus. Jordan’s boyfriend, Jacob Grisham (Grisham), lived with Jordan and took Gus to the Rural King while Jordan was at work. Grisham and Gus went up to McElhany to purchase items. McElhany asked Grisham if she could give a Gus a dog treat, and after being told she could, she gave Gus the treat. Gus dropped the treat. McElhany reached down, grabbed the treat and regave it to Gus, tapping him on the head. Gus then attacked McElhany and bit her in the face. McElhany suffered lacerations to her nose and above her left eye.

McElhany filed a personal injury lawsuit against Jordan and Grisham claiming they were negligent in causing her injuries. Jordan filed a motion for summary judgment arguing that neither she nor anyone in her household knew of the dangerous propensities of pit bulls. She also argued she could not be held liable for what happened when she was not in control of Gus when it happened. The trial court granted summary judgment in favor of Jordan, and McElhany appealed that decision.

Under Indiana law, there is a presumption that all dogs, regardless of breed or size, are harmless domestic animals, which generally shields dog owners from liability for their dogs’ acts. However, that presumption can be overcome when there is evidence of a known or dangerous propensity as shown by specific acts of a particular dog. A dog may have a dangerous propensity if the dog has a tendency to do any act that might endanger the safety of persons or property.

Jordan adopted Gus from an animal shelter. Gus came to the shelter after animal control received a report of a stray pit bull-mix dog near a dumpster that had reportedly “lunged at people.” The animal control officer that responded noted Gus did not lunge when first approached, but did bark and make a low growl. Gus received trazadone for anxiety at the animal shelter. While Jordan had not done so for another pit bull she had adopted from the shelter, she hired a behavioral trainer for Gus, describing Gus as “puppy bitey, not aggressive.” The trainer marked down that Gus showed “Aggression toward People,” as Gus had barked and lunged toward the trainer and her dog while on his leash when they first came to Jordan’s home. The trainer provided five training lessons, including one at Rural King. During a veterinary visit, Gus “tried to bite” a technician and required a basket muzzle. A basket muzzle was also used at another visit with the vet noting Gus “still hates being touched on the left ear” and “started to bark a lot ang [sic] growl more.” 

The day before the incident in this case, Jordan’s other pit bull died. While Grisham did not ask Jordan for permission to take Gus to the Rural King, Jordan had never told Grisham not to take Gus out in public, and she admitted that she would not have objected to Grisham taking Gus to the Rural King. Before the incident, when Grisham was at the Rural King with Gus, Gus snarled or snapped at another Rural King employee with no warning. The employee had noted Gus had a cut to the left side of his face, which Grisham indicated came from him falling out of a truck. After the incident, Gus was initially quarantined, as he was not up to date on his rabies vaccinations, but then he was returned. Jordan and Grisham later took Gus to the veterinarian for “some anxious behavior,” noting what seemed to be a stressful time with Jordan’s other dog passing and changes at home. The vet ordered trazadone and recommended Gus be seen by a veterinarian behaviorist. 

On appeal, the Indiana Court of Appeals found there was a genuine issue of material fact as to whether Jordan knew, or should have known, of Gus’s dangerous propensities. While the Court noted there was some evidence that Gus did not exhibit dangerous propensities, there was also evidence otherwise, including the nature of Gus’s capture, his veterinary and training records, McElhany’s testimony, and the testimony of McElhany’s veterinarian expert, who testified by affidavit that “taking a dog with anxiety such as Gus into a public store makes it likely that he will escalate to aggressive behavior.” The Court also noted, citing previous precedent, that while not all pit bulls are aggressive, “pit bulls are known to exhibit dangerous or vicious tendencies.”

With respect to Jordan not being present when the incident occurred, the Court noted Gus’s history of anxiety around people and known sensitivity to being touched near his left ear, which the Court found gave rise to a genuine issue of material issue of fact as to her negligence in “tacitly allowing Grisham to take Gus into public.” The Court noted the common experience of people approaching and petting dogs in public and the common practice of cashiers at the Avon Rural King offering treats to dogs. Jordan had never instructed Grisham not to take Gus out in public, and she admitted after the fact that she would not have objected to Grisham taking Gus to the Rural King. 

Findings genuine issues of material fact as to whether Jordan knew or should have known of Gus’s dangerous propensities before the attack and whether Jordan was negligent in allowing Gus to be taken out in the public, the Court of Appeals reversed the grant of summary judgment in favor of Jordan and remanded the case for further proceedings in the trial court. 

You can read the full opinion here.