The Indiana Court of Appeals recently held that a duplex rental owner could not be held liable for injuries to a child attacked by a lessee’s dog. In Marchino as next friend Marchino v. Stines, Rex Lott (“Lott”) owned and rented a duplex property in Indianapolis, Indiana. Matthew Marchino (“Marchino”) and his family, including his son, Marcellus Marchino (“Marcellus”), rented one side of the duplex and Woody Stines (“Stines”) rented the other side. Stines had a pit bull named Boy (“Boy”). Prior to the dog bite attack in this case, Lott had been told that Boy had chased a neighbor to the bus stop and that Boy had also nipped a maintenance man fixing a toilet in Stines’ home. While Lott had thereafter asked Stines to remove the dog, Lott did not press Stines when Stines failed to remove Boy because Stines was suffering from leukemia. Unfortunately, Boy got loose one day and attacked Marcellus as Marchino and Marcellus were leaving their home.
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.