Blake v. Dunn Farms, Inc., No. 1280S431

Docket NºNo. 1280S431
Citation274 Ind. 560, 413 N.E.2d 560
Case DateDecember 05, 1980
CourtSupreme Court of Indiana

Page 560

413 N.E.2d 560
274 Ind. 560, 21 A.L.R.4th 123
Robert Alan BLAKE, Appellant,
v.
DUNN FARMS, INC., Appellee.
No. 1280S431.
Supreme Court of Indiana.
Dec. 5, 1980.

[274 Ind. 561]

Page 561

Kennerk, Dumas, Burke, Backs, Long & Salin, P. C., Fort Wayne, Robert E. Bostwick, Wabash, for appellant.

Howard J. DeTrude, Jr., Mark D. Gray, Peter G. Tamulonis, Kightlinger, Young, Gray & DeTrude, Indianapolis, for appellee.

[274 Ind. 562] ON PETITION TO TRANSFER

PIVARNIK, Justice.

This case comes to us on a petition to transfer from the Second District Court of Appeals. Plaintiff Robert Blake appealed from a summary judgment entered in favor of Defendant Dunn Farms, Inc. The primary issue in the case was the duty of the landowner to persons on an adjacent public road, particularly as that duty applies to the ownership and keeping of domestic animals. In addition, a procedural issue was raised on appeal and is presented to us here on transfer regarding the fact that the judgment by the trial court purported to be a judgment on the pleadings as set forth in Ind.R.Tr.P. 12(C). Rule 12(C) provides that when matters other than those in the pleadings are considered by the trial court, the determination is then transformed into a summary judgment. The judgment was so considered by the Court of Appeals. This case remained in the trial court in various pleading stages for approximately four years. Plaintiff Robert Blake had filed a motion for summary judgment early on in the proceedings, and the court overruled the motion at that time. After the case was set for trial and the issues had been established early by the pleadings, the defendant filed a motion for judgment on the pleadings under Trial Rule 12(C). All parties agreed that the court could consider the pleadings, depositions, affidavits and interrogatories filed by the parties to determine this motion. The court did consider all of these documents in making its determination, and entered judgment in favor of the defendant. We agree with the Court of Appeals that under Trial Rule 12(C), the court, in considering the depositions, affidavits, and interrogatories, treated the motion as one for summary judgment and entered judgment accordingly; therefore, the case

Page 562

is properly reviewed on appeal on that basis. We further find that this case presents an issue of such public import that this Court should pass judgment on it. We accordingly grant transfer and vacate the opinions of the Court of Appeals. This vacation applies to the original opinion issued by the Court of Appeals on November 5, 1979, Blake v. Dunn Farms, Inc., (1979) Ind.App., 396 N.E.2d 415 and the opinion on Petition for Rehearing issued on January 22, 1980, Blake v. Dunn Farms, Inc., Ind.App., 399 N.E.2d 431.

There is not a great deal of dispute on the facts of this case. Plaintiff [274 Ind. 563] Blake was a passenger in an automobile which struck a horse at night. The accident occurred on a portion of a state highway running through Dunn's land. Plaintiff was severely injured and brought action against Love, the owner of the horse, and Dunn Farms, the landowner. The complaint alleged that Dunn and Love were negligent in allowing the fences to fall into a state of disrepair, and that Dunn and Love were negligent in permitting a horse to run on the state right-of-way and highway.

Dunn Farms was a family-owned corporation, the officers residing in Arizona. The farm manager and attorneys for the corporation were located in Marion, Indiana, and these agents supervised the leasing of the property. In about 1969, Robert McConnell rented the house, barn, and the property on both sides of the highway. Seventeen acres of the property were on the west side of State Highway Fifteen, and the remaining property, including the house and barn, was on the east side of the highway. Along with other farming endeavors, McConnell kept horses in the pasture fields. In June, 1971, McConnell and Love agreed that Love would pasture his horses in the west pasture. Love maintained horses and ponies in the west pasture during 1971 and 1972, including the date of the incident herein, November 21, 1972. Love claims he paid cash rent to McConnell and performed services in exchange for the right to pasture his animals.

In March, 1972, McConnell and his wife were divorced. He vacated the property, and Mrs. McConnell stayed on as the lessee and made a new agreement with Love, under which he paid additional rent and performed certain services. In June, 1972, Mrs. McConnell married Clarence Auler, and she and her new husband lived on the property as lessees until August 28 or 29, 1972. She paid rent to Dunn Farms through October, 1972. Dunn Farms and the Aulers were unable to agree upon a lease, and the Aulers left the property on that date. Apparently Love continued to maintain his horses and ponies in the west pasture.

One or more of the stockholders and officers made occasional trips to Indiana for business purposes. They were in Marion twice in 1969, and in October, 1970, and August, 1972. The president and secretary of Dunn Farms came to Indiana on November 18, 1972, and went to [274 Ind. 564] the property on that day and each succeeding day, to and including the day of November 21, 1972, when this accident occurred. Their purpose for being on the property was to clean up the buildings and make arrangements to find a new renter for the property. There was evidence that, in their trips to the house and building area, one or more of the owners (Dunns) saw some horses in the fields.

The summary judgment entered by the trial court here was based on Dunn Farms' contention that a landowner who is neither the owner not custodian of a horse cannot be held liable for injury caused by the alleged escape and running at large of such horse. The court reasoned that mere ownership of land cannot serve as a basis for liability. The uncontroverted evidence showed that Dunn Farms was neither the owner nor the custodian of the horse in question,...

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36 practice notes
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...duty in such cases to people or entities involved in the ownership or control of the injurious farm animal. In Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560 (1980), a car struck a horse that wandered onto a road at night. The driver sued the owner of the horse and the landowner. T......
  • Hutchins v. 1001 Fourth Ave. Associates, No. 57180-5
    • United States
    • United States State Supreme Court of Washington
    • January 10, 1991
    ...not persuasive where the alleged duty is owed to all those off the premises who pass by on the public way. See Blake v. Dunn Farms, Inc., 274 Ind. 560, 567, 413 N.E.2d 560 (1980) (duty of landowner to one on adjacent road distinguished from duty owed to business invitee in part on basis tha......
  • Am. Family Mut. Ins. Co. v. Williams, No. 1:14–cv–00248–SEB–DKL.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 30, 2015
    ...status as a "keeper" is significant because a dog owner's duty to keep the animal confined extends to a keeper. Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560, 563 (1980) ; Morehead v. Deitrich, 932 N.E.2d 1272, 1279 (Ind.Ct.App.2010). It is oft-repeated in Indiana case law:It is w......
  • Gaboury v. Ireland Road Grace Brethren, Inc., No. 483S110
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...duty to those he invites on his property than he owes to one who is a trespasser or licensee. Blake v. Dunn Farms, Inc., (1980) Ind., 413 N.E.2d 560. Concerning licensees, a landowner only owes him the duty of refraining from willfully or wantonly injuring him or acting in a way which would......
  • Request a trial to view additional results
36 cases
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...duty in such cases to people or entities involved in the ownership or control of the injurious farm animal. In Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560 (1980), a car struck a horse that wandered onto a road at night. The driver sued the owner of the horse and the landowner. T......
  • Hutchins v. 1001 Fourth Ave. Associates, No. 57180-5
    • United States
    • United States State Supreme Court of Washington
    • January 10, 1991
    ...not persuasive where the alleged duty is owed to all those off the premises who pass by on the public way. See Blake v. Dunn Farms, Inc., 274 Ind. 560, 567, 413 N.E.2d 560 (1980) (duty of landowner to one on adjacent road distinguished from duty owed to business invitee in part on basis tha......
  • Am. Family Mut. Ins. Co. v. Williams, No. 1:14–cv–00248–SEB–DKL.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • September 30, 2015
    ...status as a "keeper" is significant because a dog owner's duty to keep the animal confined extends to a keeper. Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560, 563 (1980) ; Morehead v. Deitrich, 932 N.E.2d 1272, 1279 (Ind.Ct.App.2010). It is oft-repeated in Indiana case law:It is w......
  • Gaboury v. Ireland Road Grace Brethren, Inc., No. 483S110
    • United States
    • Indiana Supreme Court of Indiana
    • April 13, 1983
    ...duty to those he invites on his property than he owes to one who is a trespasser or licensee. Blake v. Dunn Farms, Inc., (1980) Ind., 413 N.E.2d 560. Concerning licensees, a landowner only owes him the duty of refraining from willfully or wantonly injuring him or acting in a way which would......
  • Request a trial to view additional results

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