Cook v. Whitsell-Sherman

• Decision Date: 24 September 2003
• Docket Number: No. 48S04-0211-CV-607.,48S04-0211-CV-607.
• Citation: 796 N.E.2d 271
• Parties: Tamara COOK, Appellant (Defendant below), v. Kenneth WHITSELL-SHERMAN, Appellees (Plaintiff below).
• Court: Indiana Supreme Court

796 N.E.2d 271

Tamara COOK, Appellant (Defendant below), v. Kenneth WHITSELL-SHERMAN, Appellees (Plaintiff below).

No. 48S04-0211-CV-607.

Supreme Court of Indiana.

September 24, 2003.

Kevin C. Tyra, Doris L. Sweetin, Indianapolis, IN, Attorneys for Appellant.

Richard Walker, Anderson, IN, Attorney for Appellee. BOEHM, Justice.

Tamara Cook's dog bit Kenneth Whitsell-Sherman while Whitsell-Sherman was discharging his duties as a letter carrier. The liability of owners whose dogs bite mail carriers and certain other public servants is governed in Indiana by statute. We hold the effect of this statute is to render dog owners strictly liable if their dogs bite the described public servants without provocation.

We also hold Indiana Rule of Evidence 413 allows the admission into evidence of bills for actual charges for past medical treatment but does not authorize admission of written statements purporting to estimate future medical costs.

Factual and Procedural Background

On the afternoon of July 31, 1998, Kenneth Whitsell-Sherman was delivering mail as a letter carrier for the United States Postal Service. When he arrived at the home of Marva and Joseph Hart, the Harts were on the sidewalk outside their fenced yard and their eight-year-old daughter was several feet away on the sidewalk, holding Maggie, a 100-pound Rottweiler, on a leash. Maggie was owned by appellant Tamara Cook, and the Harts were taking care of her while Cook was out of town. When Whitsell-Sherman finished delivering the Hart's mail and attempted to walk around Mrs. Hart, Maggie broke free and bit Whitsell-Sherman on the left hand. Before this incident, Maggie had never demonstrated any aggressive or violent tendencies.

Whitsell-Sherman sued Cook and the Harts. The Harts did not appear and a default judgment was entered against them on both the complaint and Cook's cross claim for indemnity. After a bench trial, the trial court found that Cook was the owner of the dog and the Harts had custody and control at the time of the incident. The court concluded that Cook was liable for negligence per se and violation of a statutory duty.

The trial court found it "highly likely" that Whitsell-Sherman will need significant future surgery¹ and ruled that Evidence Rule 413 allowed Whitsell-Sherman to prove these future costs through four contested items of evidence: letters from a hospital, a surgeon, and an anesthesiologist estimating the cost of future treatment and a summary of future prescription costs, compiled by Whitsell-Sherman's lawyer. The trial court entered judgment for Whitsell-Sherman against Cook and the Harts in the amount of $87,000. Cook appealed and the Harts remained in default.

Indiana Code section 15-5-12-1 provides:

If a dog, without provocation, bites any person who is peaceably conducting himself in any place where he may be required to go for the purpose of discharging any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States of America, the owner of such dog may be held liable for any damages suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

On appeal, the Court of Appeals agreed that Cook was the "owner" of the dog for purposes of this statute, but reversed the trial court's determination that the statute rendered the owner liable under the doctrine of negligence per se. The Court of Appeals reasoned that the statute imposed no duty upon Cook and did not alter the common law standard of reasonable care required of dog owners except to eliminate the common law presumption that a dog is harmless. The court concluded that under general rules of negligence a public servant who has been bitten by a dog must still show that the dog's owner failed to act reasonably to prevent the dog from causing harm. Because the admissibility of evidence of future medical expenses was likely to arise again upon retrial the Court of Appeals also addressed the trial court's ruling on Evidence Rule 413, and held that estimates of future medical charges were admissible under Rule 413. This Court granted transfer.

I. Liability of "Owners" and Keepers to Public Servants Bitten by Dogs

At the time Maggie bit Whitsell-Sherman, Cook was Maggie's owner but not her custodian. Whether Indiana Code chapter 15-5-12 renders Cook liable under these facts is a question of law and we review it de novo.

Cook argues initially that the statute does not apply to her in this situation because at the time of the incident she was not in possession of the dog. Section 15-5-12-2 provides that "owner" as the term is used in XX-X-XX-X "includes a possessor, keeper, or harborer of a dog." Cook reasons that under this definitional section, an "owner" of a dog is the person who has control of the dog at the time of the bite. As in this case, the "keeper" may not be the person to whom the dog belongs. The Court of Appeals held that the statute applies to Cook by its terms. The statute explicitly provides that " `owner' means the owner of a dog." Ind.Code § 15-5-12-2 (1998). The court reasoned that the fact that the statute goes on to say that "owner" also "includes" the "possessor, keeper, or harborer of a dog" does not restrict the term "owner" to those in immediate custody. Rather, it expands the definition of "owner" to include others in addition to the dog's owner. We agree that Cook's liability is governed by this statute. By providing that owner "includes" custodians, it does not substitute them for the owner if, like Cook, the owner is absent from the scene of the bite. This also seems fair because the owner is usually better able to know the dog's temperament than one to whom temporary custody is extended. The owner is ordinarily best positioned to give whatever special instructions are necessary to control the dog.

Cook argues that even if she is an owner, the trial court misapplied Section 15-5-12-1 when it held her negligent per se by reason of the statute. The 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 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 argues that Indiana Code section 15-5-12-1 does nothing to alter this traditional framework other than to remove the common law presumption of harmlessness if a dog injures a public servant. Accordingly, she argues, the public servant injured by a dog still bears the burden of showing that the owner of the dog failed to exercise reasonable care to prevent the dog from causing injury.

We agree with Cook's view of the common law of dog bites, but we think it clear that Section 15-5-12-1 was intended to alter that common law framework if the victim is a letter carrier. A statute in derogation of the common law is presumed to be enacted with awareness of the common law. Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1, 10 (Ind.1993). Here, the legislature clearly intended to change the common law and did so by explicitly removing the common law presumption that a dog is harmless unless it acts otherwise. Some states have chosen to impose strict liability for all dog bites. As the Restatement notes, "[s]tatutes frequently abolish the necessity of scienter and impose strict liability for all harm caused to human beings and livestock by dogs." Restatement (Second) of Torts § 509 cmt. f (1977). See, e.g., Nicholes v. Lorenz, 49 Mich.App. 86, 211 N.W.2d 550, 551 (1973)

(a statute that provides "the owner of any dogs which shall ... bite any person ... shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness" places absolute liability on the owner of the dog).

The Indiana statute imposes a less sweeping revision of common law. It protects only public servants, and does not expressly set a standard of conduct or impose liability for a bite. The trial court concluded that the effect of the statute was to render the owner negligent per se. Negligence per se is ordinarily found where the actor has violated a duty imposed by law. Elder v. Fisher, 247 Ind. 598, 602, 217 N.E.2d 847, 850 (1966). For example, violation of a statute making it a misdemeanor to permit cattle to wander onto a highway is negligence per se. Corey v. Smith, 233 Ind. 452, 455, 120 N.E.2d 410, 412 (1954). Just as the Indiana statute does not explicitly create liability, it also does not expressly establish a standard of conduct. It thus does not suggest negligence per se under standard doctrine.

We nevertheless conclude the statute has the effect of rendering the owner liable for bites of public servants. Persons engaged in dangerous activities may be strictly liable to others who are injured. Specifically, owners of wild animals have been viewed as negligent per se for failure to control the animal. See Bostock-Ferari Amusement Co. v. Brocksmith, 34 Ind. App. 566, 568, 73 N.E. 281, 282 (1905). More recently, liability for injuries inflicted by wild animals has been viewed as strict liability doctrine. Irvine v. Rare Feline Breeding Ctr., 685 N.E.2d 120, 123 (Ind.Ct.App.1997) (injuries by a tiger). Thus, possession of a wild animal is, like blasting, an unreasonably dangerous activity...