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.

Indiana’s Dog Bite Statute provides that an owner of a dog that bites a person, without provocation, is liable for all damages suffered by the person if the person was acting peaceably and was in a location where the person may be required to be in order to discharge a duty imposed upon the person by the laws of Indiana, the laws of the United States, or the postal regulations of the United States. Ind. Code § 15-20-1-3(a). An “owner” is defined in the Dog Bite Statute as the owner of a dog, including any person who “possesses, keeps, or harbors a dog.” Ind. Code § 15-20-1-2. Under the Dog Bite Statute, an owner is liable for damages even if the dog had not previously behaved in a vicious manner and the owner had no knowledge of prior vicious behavior by the dog. Ind. Code § 15-20-1-3(b). In essence, Indiana’s Dog Bite Statute renders dog owners strictly liable when their dogs bite the class of individuals set forth in the Statute without provocation.

Gaw filed a motion for summary judgment arguing that she had no duty of care to Fields, with her noting that Jason had full possession or control of the rental property, she was not present on the property when the incident occurred, and she was not the owner of, and did not have control over, the dogs. In response, Fields argued that because the lease agreement between Gaw and Jason allowed Jason to have dogs at the rental home, Gaw thereby “harbored” the dogs, making her an “owner” under the Dog Bite Statute. The trial court granted summary judgment for Gaw, finding Gaw was not “the owner of the dog at issue,” with “not even any inference… that supported [Fields’] argument that Gaw possessed, kept, or harbored the dog at issue.” The trial court also found no common law liability on behalf of Gaw and denied Field’s cross-motion for summary judgment. Fields only appealed the trial court’s judgment as to the applicability of Dog Bite Statute as to Gaw.

After first recognizing that there existed no Indiana precedent construing the word “harbors” as set forth in the Dog Bite Statute, the Court of Appeals turned to the question of whether the term was clear and unambiguous, as that is the starting point for courts in interpreting statuary language. The Court noted prior precedent in which the Indiana Supreme Court found no ambiguity in the term “owner” under a prior version of the Dog Bite Statute and referred to those who “possess, keep, and harbor” a dog as custodians, a term that entails more than a mere rental agreement allowing for pets. The Court also noted the Corpus Juris Secundum definition of “harboring” as “a person who affords lodging, shelters, or gives refuge to a dog for a limited purpose or time.” Accordingly, the Court of Appeals held the term “harbors” in the Dog Bite Statute is unambiguous, and means a person who directly lodges, shelters, or gives refuge to a dog, as opposed to a person who owns and rents out the place where the dog is lodged, sheltered, or provided refuge. Since Gaw did not personally afford the dogs lodging, shelter, or refuge, or otherwise have any interaction or contact with the dogs, the Court held Gaw was not an “owner” of the dogs under the Dog Bite Statute and affirmed the trial court’s grant of summary judgment in favor of Gaw.

You can read the full opinion here.

Marchino filed a negligence lawsuit against Stines and Lott. To establish negligence in Indiana, a plaintiff must show a duty owed to the plaintiff by the defendant, the defendant’s breach of that duty by failing to comply with the requisite standard of care, and injuries proximately caused by the breach. Lott filed a motion for summary judgment arguing he had no duty of care towards Marcellus and could not be held liable for the injuries Boy caused because Stines had leased the property and had exclusive possession and control of the property. In response, Marchino argued Lott knew of Boy’s dangerous propensities (a question of fact conceded by Lott), and Lott had retained control of the premises giving rise to a duty of care to Marcellus. As to control, Marchino pointed to the lease agreement between Stines and Lott, which provided Lott retained a right of inspection and no pets were allowed on the property unless approved by Lott. After a hearing, the trial court granted Lott’s motion for summary judgment finding Lott owed no duty of reasonable care to Marcellus.

In Indiana dog bite cases, whether a landowner has a duty of reasonable care depends on the landowner’s control or possession of the property and the landowner’s actual knowledge of a dog’s dangerous propensities. If neither exist, a landowner cannot be held liable. Landowners who give tenants full control and possession of leased property are generally not liable for personal injuries suffered by persons on the property, absent a statute, covenant, fraud, or concealment.

Marchino argued on appeal that there was a genuine issue of material fact as to Lott’s duty of reasonable care because Lott retained control of whether there would be pets in the duplex unit, Lottt had the right to inspect the unit, and without regard to physical possession of the property, Lott was in the best position to protect Marcellus from Boy. However, the Indiana Court of Appeals disagreed. The Court noted its prior decisions rejecting similar arguments as to control based upon common lease provisions such as the ones at issue in this case. As to who was in the best position to prevent the harm, the Court noted the question of duty depends not on the characteristics of the tenant, but the characteristics of the property, and when a landlord has given possession and control of property to a tenant, it is the tenant who is legally responsible. Concluding Stines had exclusive control and possession of the property, the Court found Lott had negated the element of duty in Marchino’s claim and affirmed the trial court’s grant of summary judgment in favor of Lott.

You can read the full opinion here.

In deciding the case, the Court of Appeals reviewed Indiana premises liability law, Indiana law on injuries caused by domestic animals, Indiana negligent entrustment law, Indiana negligent supervision law, and Indiana vicarious liability law.

The landlord in this case was in Florida and left her home in Indiana, including animals on her property, under the care of her half-brother. The landowner’s half-brother invited the plaintiff onto the property to help care for an ill goat. While attempting to help the goat, the plaintiff was injured. The plaintiff sought to hold the landowner liable for her injuries on the basis of premises liability, negligent entrustment, negligent supervision, and vicarious liability. Both parties moved for summary judgment, and the trial court granted summary judgment in favor of the landowner.

Under Indiana premises liability law, a landowner owes the highest duty of care to an invitee. A landowner must exercise reasonable care for an invitee’s protection while the invitee is on the premises. While the landowner in this case argued that the plaintiff was not an invitee, the Court disagreed and found the plaintiff was an invitee because the plaintiff had been invited onto the property by the landowner’s half-brother, which was reasonably foreseeable to the landowner.

The duty of landowners to exercise reasonable care for the protection of invitees includes, not only conditions on the land, but also activities being conducted on the land, such as maintenance of a domestic animal. Owners or keepers of domestic animals must provide for restraining and confinement of their animals to protect against personal injuries. Generally, however, an owner of a domestic animal is not liable for injuries caused by a domestic animal unless the animal had dangerous propensities that were known, or which should have been known, by the owner. An owner or keeper of the animal must exercise reasonable care under the circumstances to protect against harm where the plaintiff can establish (1) a defendant’s knowledge that a particular animal has a propensity for violence, or (2) a defendant’s ownership of a member of a class of animals that are known to have dangerous propensities, such that the defendant is bound to have knowledge of the potential danger.

In this case, while the ram in question had never exhibited any dangerous propensities, the plaintiff presented expert testimony that rams, as a class, do have dangerous tendencies under some circumstances, such as those present in this case, which the landowner is held to have known. As such, the question became whether the landowner took reasonable precautions to prevent the ram from causing injuries to the plaintiff while on the landowner’s property. The Court of Appeals held that this presented a genuine issue of material fact, precluding entry of summary judgment.

Under Indiana law on negligent entrustment, a plaintiff must show (1) an entrustment, (2) to an incapacitated person or one who is incapable of using due care, (3) with specific and actual knowledge that the person is incapacitated or incapable of using due care at the time of the entrustment, (4) proximate cause, and (5) damages. The Court of Appeals held that the plaintiff in this case failed to present evidence that the landowner had specific and actual knowledge of any incapacity or inability to use due care on behalf of the landowner’s half-brother, and therefore affirmed the trial court’s entry of summary judgment in favor of the landowner on this issue.

As to the plaintiff’s negligent supervision claim, the Court of Appeals held that the plaintiff in this case failed to produce sufficient authority to support her claim that the landowner, who was not in an employer-employee relationship with her half-brother, could be held liable for negligent supervision of her half-brother. In so holding, the Court noted the precedent set forth by the Indiana Supreme Court in Sedam v. 2JR Pizza Enters., LLC, 84 N.E.3d 1174 (Ind. 2017) which can be found here. In Sedam the Supreme Court rejected an invitation to adopt Section 7.05 of the Third Restatement of Agency, which provides for the liability of a principal who conducts activity through an agent when the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent. The basis the Sedam Court gave was Indiana’s adoption of section 317 of the Restatement (Second) of Torts, which provides that a master has a duty to exercise reasonable care to control a servant while the servant is acting outside the scope of the servant’s employment, and when the servant is acting within the scope of the servant’s employment, a master can be held liable under vicarious liability.

As to any vicarious liability of the landowner, the Court held that the plaintiff failed to raise this basis for liability before the trial court, and therefore, waived it to the extent that it was being raised for the first time on appeal. Additionally, the Court noted that the plaintiff did not raise or seem to claim, even on appeal, that the landowner’s half-brother was negligent, much less provide proof of such negligence. As noted by the Court of Appeals, there can be no vicarious liability of a master/principal when there is no underlying negligence of an employee/agent.

In sum, the Indiana Court of Appeals reversed the trial court’s grant of summary judgment on the basis of premises liability, holding the question of whether the landowner took reasonable precautions to prevent the ram from causing injury to the plaintiff was a question for the jury. However, the Court upheld the trial court’s grant of summary judgment on the basis of negligent entrustment, negligent supervision, and vicarious liability.

You can read the full opinion here.

The personal injury lawyers at Barsumian Armiger handle personal injury claims, including dog bite lawsuits and lawsuits related to injuries caused by domestic animals, throughout southern and central Indiana. If you have suffered a dog bite or been injured by an animal and would like to know your legal rights, call Indiana personal injury attorneys Todd Barsumian and Jonathan Armiger for a free consultation at (812) 490-0820 or (317) 644-6975, or visit www.barsumianlaw.com.

If a store or establishment has the ability and means to protect against a preventable injury, that place has the legal responsibility to enforce those protections. This can mean ensuring an uneven sidewalk is fixed or labeled as broken or uneven. If you break an ankle on an uneven sidewalk, you could have a a viable claim for monetary damages.

Banisters and sidewalks can be the source of injury just as easily as a store floor that is wet without a warning sign. If a banister leading up the stairs — inside or outside — breaks and gives way, an unexpected fall can lead to serious injuries. Also, a single step in a state of disrepair or otherwise unsafe can collapse and also lead to serious injuries.

An accident on the property of another can lead to broken bones, head injuries, concussions or worse. In Indiana, anyone injured in this manner may be able to pursue a civil suit against the establishment owner or person or entity whose responsibility it was to ensure reasonable care and safety were taken. Our website may provide helpful information to guide you through the process and help you understand what may constitute a viable premises liability claim in the state of Indiana.

People of all ages could be hurt in a dog attack. That said, children are a demographic that are at a high risk for being involved in such an incident. Of the approximate 800,000 dog bites that take place each year, about half involve children who need medical assistance. Each year, between 15 and 20 of these bites to children result in death.

According to the ASPCA there are things that can be done to try to limit the number of these incidents involving children that occur each year.

For example, children should not try to pet dogs:

• Without asking permission of the dog’s owner
• That are positioned behind a fence or are in a car.

They should not even approach dogs:

• That are off-leash running around the neighborhood.
• That are caring for puppies, chewing on a bone/toy, eating, or sleeping.
• That seem scared or are growling or barking.

When a dog approaches a child the young person should not try to get away from it by running or screaming. Instead it is best to not make eye contact and stay very still until the dog loses interest and goes away. If a dog knocks a child down, the child should curl up in a ball, stay still and put his or her hands behind their head to protect their ears and neck. Again, the child should stay that way until the dog loses interest. In cases where a dog does attack a young person he or she should give the dog anything they can–such as an article of clothing–to put some distance between them and the animal.

When a dog does attack a child–or anyone–it is possible that legal action could be appropriate. Those who find that they are in that situation could benefit from working with a lawyer.

The treatment a dog bite will require depends on its severity. Superficial gashes or scrapes can be treated with a topical antibiotic and bandaged after being cleaned under running water and with either isopropyl alcohol or hydrogen peroxide.

Puncture wounds are generally more serious. If the wound is bleeding profusely and will not stop with direct pressure 911 should be called. In other situations it is okay to let it bleed a bit as it will clean the wound out. When it stops bleeding, running water and a mild soap can be used to clean it. Isopropyl alcohol and hydrogen peroxide are generally not needed as they may make it take longer for the wound to heal. A bandage is optional.

There are other concerns that people may have following a dog bite such as rabies. When it is an unknown dog that is responsible for the bite animal control should be called. In addition, medical attention should be sought immediately. It is possible that rabies shots could be necessary.

While seeking medical attention is of course a priority following a dog bite, legal action may also make sense. To learn about the available options a personal injury lawyer can be of assistance.

Some common scenarios that can be resolved by civil suits include slip-and-fall cases and negligent security cases. These kinds of accidents can result in devastating injuries, particularly to individuals who already have health issues. In addition, medical negligence and medical malpractice are also commonly cited in personal injury lawsuits.

Some personal injury suits may involve companies or entities who acted negligently. This can include incidents of product liability, such as when a company manufactures a dangerous product that results in injuries to consumers. Construction site accidents resulting from third-party negligence can also warrant personal injury suits when injured workers or bystanders sustain serious injuries.

Fortunately for Indiana residents who have sustained personal injuries or suffered the losses of loved ones, help is available. At Barsumian Armiger, we have extensive experienced helping clients through the personal injury claims process, and we can help you as well. If you are interested in learning more about your legal options for pursuing compensation, you can visit our website, where you will find more information, or you can schedule an initial consultation at our conveniently located law office.

During the National Dog Bite Prevention Week last month, it was reported that in excess of 4.5 million people nationwide suffer dog bites every year. In 2014, Indiana was at number 13 on the country’s list of dog attacks per state. During that week, the American Veterinary Medical Association in collaboration with an insurance company educated children and adults about the prevention of dog bite injuries.

The insurance company that was involved in the education project reported that it paid just under $3 million in claims for dog bite injuries in 2014. An Animal Control Officer says a lot can be revealed by the body language of dogs. Dogs with their tails lowered must not be approached. Also, bristled hair on a dog’s back is a sure sign of danger, and such a dog must be avoided.

People in Indiana and elsewhere who have suffered dog attacks — or have a loved one who was attacked — may have to face significant medical expenses. There may also be other losses such as lost income, pain and suffering and even potential future expenses for skin grafts. An experienced premises liability attorney will use his or her knowledge and resources to create a claim for damages. Many of these claims are settled, but a lawyer will be able to take a case to trial if necessary.

Source: wthitv.com, “National Dog Bite Prevention Week draws attention to an increasing problem“, Melissa Crash, Accessed on June 13, 2015