Burgin By and Through Akers v. Tolle

• Decision Date: 01 December 1986
• Docket Number: No. 88A04-8605-CV-00143,88A04-8605-CV-00143
• Citation: 500 N.E.2d 763
• Parties: Shannon Marie BURGIN, By and Through her Mother and Next Friend, Mary Evelyn AKERS, Appellant (Plaintiff Below), v. James TOLLE and Marlene Tolle, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 763

500 N.E.2d 763

Shannon Marie BURGIN, By and Through her Mother and Next

Friend, Mary Evelyn AKERS, Appellant (Plaintiff Below), v. James TOLLE and Marlene Tolle, Appellees (Defendants Below).

No. 88A04-8605-CV-00143.

Court of Appeals of Indiana,

Fourth District.

Dec. 1, 1986.

William E. Smith, III, Hanger, Engebretson & Mayer, Clarksville, for appellant.

Sandra L. Heeke, Fox & Smith, Jeffersonville, for appellees.

CONOVER, Presiding Judge.

Plaintiff-Appellant Shannon Burgin (Burgin) through her mother Mary Akers (Akers) appeals a summary judgment in favor of James and Marlene Tolle (Tolle) in an action to recover damages sustained from a dog bite.

We affirm.

ISSUES

Burgin presents two issues for our review. Restated they are,

1. whether the trial court erred in finding on summary judgment the dog had no vicious propensities;

2. whether the trial court erred by failing to apply the city of Jeffersonville's animal ordinance.

FACTS

The facts most favorable to the nonmoving party are: On September 4, 1981, Burgin, a three and one-half year old child, was bitten by a black labrador retriever owned by Tolle. Witnesses of the event gave conflicting accounts of what transpired that day. Apparently, Burgin was jumping over the dog on a porch when she landed on the dog and the dog bit her. She then fell from the porch. A doctor's affidavit revealed Burgin received a three centimeter by two centimeter cut as a result of the dog bite.

On August 1, 1984, Burgin filed suit for injuries she sustained as a result of the dog bite. Tolle moved for summary judgment. During the hearing for summary judgment Burgin's counsel stated through interrogatories he would not try to prove the dog had vicious propensities. Burgin presented no evidence on this point.

The court granted Tolle's motion for summary judgment. From this ruling Burgin appeals.

DISCUSSION AND DECISION

I. Standard of Review

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Creighton v. Caylor-Nickel Hospital, Inc. (1985), Ind.App., 484 N.E.2d 1303, 1305-1306. The burden is upon the moving party in a summary judgment motion to establish the lack of a genuine issue of material fact. Ancich v. Mobil Oil Corp. (1981), Ind.App., 422 N.E.2d 1320.

When reviewing the grant of a motion for summary judgment, we stand in the shoes of the trial court. Lafary v. Lafary (1985), Ind.App., 476 N.E.2d 155, 158. We must liberally construe all evidence in favor of the nonmovant and resolve any doubts as to the existence of a genuine issue against the proponent of the motion. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723, 729. Even if facts are not in dispute, summary judgment is not appropriate if conflicting inferences arise from the facts. Board of Aviation Commissioners of St. Joseph County v. Hestor (1985), Ind.App., 473 N.E.2d 151.

Summary judgment may not be used as a substitute for trial to resolve factual disputes. Even if the trial court believes the nonmoving party will not be successful at trial, summary judgment should not be entered where material facts conflict or conflicting inferences are possible from undisputed facts. Grimm v. Borkholder (1983), Ind.App., 454 N.E.2d 84, 86.

II. The Common Law

Burgin argues the trial court misapplied the common law to the facts of this case. We disagree with Burgin and agree with the trial court's holding on this issue.

Under our common law all dogs, regardless of breed or size are presumed to be harmless, domestic animals. Royer v. Pryor (1981), Ind.App., 427 N.E.2d 1112. This presumption is overcome by evidence of a known or dangerous propensity as evidenced by specific acts of the particular animal. Doe v. Barnett (1969), 145 Ind.App 542, 251 N.E.2d 688, 694. When evidence of such propensity is shown, a duty arises for the owner or keeper to use reasonable care to prevent the dog from biting someone. Doe, supra.

Here, Burgin's counsel did not claim the dog had vicious propensities. "[W]e are not claiming the dog had a vicious propensity" (R. S-40). Furthermore, the uncontradicted evidence presented leads to that same conclusion.

In the absence of knowledge on the part of an owner or keeper of animals of vicious propensities, the owner or keeper may become liable for damages the animal causes where the owner or keeper is otherwise negligent in the manner of their keeping and control. Weaver v. National Biscuit Co. (7th Cir.1942) 125 F.2d 463; Eichel v. Senhenn (1891), 2 Ind.App. 208, 28 N.E. 193.

When negligence is claimed, in the absence of evidence the owner knew or should have known of a vicious tendency, the rule is simply that the owner of a domestic animal is bound to know the natural propensities of the particular class of animals to which it belongs. If these propensities are the kind which might be reasonably expected to cause injury, the owner must use reasonable care to prevent the injuries from occurring. Dyer v. Noll (1938), 105 Ind.App. 241, 14 N.E.2d 760.

The common law presumption a dog is harmless was not overcome in this case. The undisputed evidence reveals the dog had never shown vicious propensities.

We find the Third District's recent statements instructive on this point. "To impose liability in these circumstances, i.e. a dog bite inflicted on a person who surprises a dog, which is quietly sitting while being petted by another person, and while it is confined to the owner's premises, is contrary to our law." Alfano v. Stutsman (1984), Ind.App., 471 N.E.2d 1143, 1146.

III. The City Ordinance

Burgin next maintains the trial court erred because the city of Jeffersonville had in full force and effect an ordinance which holds an owner liable for damages done by a dog. It reads in part

Sec. XIII Animal Bites.

* * *

(C) the owner shall be liable for costs incurred in the quarantine of the animal and for any personal and property damages realized by the incident.

Ordinance No. 78-OR-43 (R. 27-28).

Tolle counters this contention with four arguments.

First, Tolle claims since the ordinance was not properly admitted as evidence below, we should ignore its existence. We cannot do so.

Where an action is predicated on an ordinance, so much of it as relates to the action must be made a part of the complaint. Matter of Public Law No. 305 and Public Law No. 309 of Indiana Acts (1975), 263 Ind. 506, 334 N.E.2d 659, 662. Burgin submitted the ordinance to the court by attaching it to his complaint. Whether the ordinance was in full force and effect at the time of the event is a factual question which is inappropriate for summary judgment unless specifically raised as an issue in the proceeding. It was not so raised here. Thus, this argument fails.

Tolle next argues the dog bite ordinance is void because the state has enacted comprehensive legislation which preempts the city's ordinance. We disagree.

Tolle points to only one statute, IND.CODE 15-5-12-1. ¹ This statute is neither comprehensive nor preemptive.

Next, Tolle argues a municipality is powerless to change the common law. Again, we disagree. No one has a vested interest in any rule of the common law. Sidle v. Majors (1976), 264 Ind. 206, 341 N.E.2d 763, 766. The great office of statutes is to remedy defects in the common law as they develop, and to adopt it to the change of time and circumstances. Id. In the absence of a specific denial or...