Hardsaw v. Courtney, 22A01-9509-CV-280

• Decision Date: 15 May 1996
• Docket Number: No. 22A01-9509-CV-280,22A01-9509-CV-280
• Citation: 665 N.E.2d 603
• Parties: Daniel HARDSAW and D.A. Hardsaw, Appellants-Defendants, v. Kimberly G. COURTNEY and William S. Courtney, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 603

665 N.E.2d 603

Daniel HARDSAW and D.A. Hardsaw, Appellants-Defendants, v. Kimberly G. COURTNEY and William S. Courtney, Appellees-Plaintiffs.

No. 22A01-9509-CV-280.

Court of Appeals of Indiana.

May 15, 1996.

Rehearing Denied July 25, 1996.

Michael E. Brown, John B. Drummy, Kightlinger & Gray, Indianapolis, for appellants.

Michael J. McDaniel, McDaniel & Briggs, New Albany, for appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Daniel and D.A. Hardsaw (the "Hardsaws") appeal from a jury verdict in favor of Kimberly G. and William S. Courtney (the "Courtneys"). The Courtneys filed their complaint for damages against the Hardsaws after Kimberly was attacked and bitten by the Hardsaws' dog. The Courtneys alleged that the Hardsaws negligently entrusted their premises, including the dog, to their twelve-year-old minor daughter.

We affirm.

ISSUES

The Hardsaws present two issues for our review which we restate as:

1. Whether there is sufficient evidence to support the verdict.

2. Whether the trial court erred when it instructed the jury concerning the vicious propensity of the dog.

FACTS

The facts most favorable to the verdict reveal that in late 1987 Kimberly Courtney and her family moved into their Georgetown residence which was located across the street from the Hardsaws. On November 30, 1991, the Hardsaws traveled to Leavenworth, Indiana. They left their twelve-year-old daughter, Diana, and seventeen-year-old son, Jamie, at home, but were aware that Jamie was going to be leaving. The Hardsaws' coon dog, Buster, also remained at the residence chained in their yard. The Hardsaws instructed Diana to stay in the house and to call them if she had any problems.

Later that afternoon, Kimberly was across the street in her home when she heard the sounds of an animal yelping and crying. She went outside and saw that Buster was tangled in his chain, hanging upside down and foaming at the mouth. Because no cars were parked in the Hardsaws' driveway, Kimberly believed that no one was home and attempted to reach Mr. Hardsaw at his work number. While on the telephone, Kimberly saw Diana open the front door of the house in order to let the Hardsaws' other two dogs outside. Kimberly crossed the street, knocked on the Hardsaws' door and informed Diana of Buster's predicament. Diana came outside and asked Kimberly to wait for a minute while Diana tried to untangle Buster. When Diana could not get the chain untangled she unhooked the chain from Buster's collar. Buster, who was approximately the same size as Diana, escaped Diana's grasp and ran up to Kimberly stopping a foot in front of her. Diana called after Buster and said to Kimberly, "He's a nice dog. He won't bite." Kimberly began to reach out the palm of her hand to Buster when Buster jumped up and bit down on her left arm. Kimberly freed herself and turned in a panic to run but slipped and fell face down in the Hardsaws' yard. Buster proceeded to bite Kimberly repeatedly on the inside and back of her thighs. Members of Kimberly's family heard the commotion and came to her aid.

The Courtneys filed their complaint against the Hardsaws on March 19, 1993, and amended the complaint on March 7, 1995. The Courtneys alleged that the Hardsaws carelessly and negligently entrusted their minor daughter with the care, custody and control of their premises, including the care of Buster. Following trial, the jury returned its verdict in favor of the Courtneys. The jury concluded that Kimberly Courtney was 30% at fault for her injuries, and awarded the Courtneys $28,824.01 in compensatory damages. The Hardsaws appeal.

Issue One: Sufficiency of the Evidence

The Hardsaws contend the evidence is insufficient to support the verdict and judgment in this case. We disagree.

When reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Bob Schwartz Ford, Inc. v. Dunham, 631 N.E.2d 953, 955 (Ind.Ct.App.1994). We consider only the evidence and reasonable inferences therefrom which support the jury's verdict. Id. In a civil case in which the jury returns its verdict for the plaintiff and the trial court enters judgment on that verdict, reversal is proper only where there is no evidence or reasonable inference from that evidence on an essential element of the plaintiff's case. Board of Comm'rs of Adams County v. Price, 587 N.E.2d 1326, 1332 (Ind.Ct.App.1992), trans. denied.

Unlike most cases involving dog bites, the Courtneys' claim is not based upon a pure negligence theory or upon premises liability. The Courtneys' claim focuses on whether the Hardsaws were negligent in entrusting their twelve-year-old daughter, Diana, with the care, custody and control of the dog in their absence. To prove a claim of negligent entrustment, a plaintiff must prove: (1) an entrustment; (2) to an incapacitated person or one who is incapable of using due care; (3) with actual and specific knowledge that the person is incapacitated or incapable of using due care at the time of the entrustment; (4) proximate cause; and, (5) damages. Brewster v. Rankins, 600 N.E.2d 154, 158-59 (Ind.Ct.App.1992). Although application of the doctrine of negligent entrustment was once limited to situations involving automobiles and firearms, application of the doctrine no longer depends solely upon the instrumentality involved. See id. at 159. The theory of negligent entrustment does not hinge on the nature of the instrumentality but on the supplying of the instrumentality for probable negligent use. Id. The Hardsaws assert that there was insufficient evidence of the first three elements of negligent entrustment.

With regard to the first element, we conclude that the Courtneys have established an entrustment of Buster's care to Diana. While the Hardsaws argue that there is no evidence that they specifically entrusted the dog to the twelve-year-old, Diana was left home alone with the dog chained on the premises. Diana herself recognized that she was responsible for the dog's well-being when she immediately went to its aid. A domestic pet is not a wholly self-sufficient animal and requires human care and supervision under many circumstances. The evidence indicates that on at least two prior occasions, Buster had broken free from his chain. It was reasonably foreseeable that Diana would have to exercise some form of care or control of the dog during the course of the day.

We next consider whether the evidence supports the conclusion that Diana was incapable of using due care in supervising and controlling the dog. The standard of care expected of a child is measured by that degree of care which would ordinarily be exercised by a child of like age, knowledge, judgment and experience under like conditions and circumstances. Moore v. Rose-Hulman Inst. of Technology, 165 Ind.App. 165, 170, 331 N.E.2d 462, 464 (1975). There is no evidence to indicate that Diana was instructed by her parents on how to care for and control Buster. The Hardsaws admit that Diana had a complete lack of prior experience in supervising the dog. There was additional testimony to indicate that Buster and twelve-year-old Diana were approximately the same physical size. There is sufficient evidence to support the jury's conclusion that Diana was incapable of exercising due care in her custody and control of Buster.

Further, the jury could have reasonably inferred that the Hardsaws had actual and specific knowledge that due to her young age and lack of experience, Diana was incapable of using due care at the time they entrusted her with the dog. In recognition of Diana's young age, the Hardsaws gave Diana specific instructions to stay in the house while they were gone and to telephone them if she had any problems. As we have noted above, Diana had no prior experience in supervising Buster and, on the day in question, the Hardsaws did not instruct Diana on how to care for or control the dog in their absence. That evidence coupled with evidence that Diana was comparable in size to the dog was sufficient to support a reasonable inference that the Hardsaws had actual knowledge that she would be unable to control the dog adequately.

Still, the Hardsaws maintain that they had no reason to know that Buster represented a risk of harm to others and, thus, that they were not negligent in entrusting the dog to Diana. Indiana common law provides that all dogs regardless of breed or size are presumed to be harmless domestic animals. Royer v. Pryor, 427 N.E.2d 1112, 1117 (Ind.Ct.App.1981). That presumption is overcome by evidence of a known or dangerous propensity as shown by the specific acts of the particular animal. Ross v. Lowe, 619 N.E.2d 911, 914 (Ind.1993). A dangerous propensity is a tendency of an animal to do any act which might endanger the safety of persons or property in a given situation. Id. When the animal's owner or keeper has such knowledge, he is obligated to use reasonable care to prevent the animal from causing injury. Id.

Nonetheless, the owner of a dog is bound to know the natural propensities of dogs, and if those propensities are of the kind which reasonably might be expected to cause injury, the owner must use reasonable care to prevent such injuries from occurring. Alfano v. Stutsman, 471 N.E.2d 1143, 1145 (Ind.Ct.App.1984). Indeed, an owner is bound to know that a dog might become excited or confused under certain circumstances and must use reasonable care to prevent a mishap. See id. (citing McAbee v. Daniel, 60 Tenn.App. 239, 445 S.W.2d 917 (1968)).

Thus, even if the owner is unaware of any specific vicious propensity, the duty owed is the same: that of reasonable care under the circumstances. Ross, 619 N.E.2d at 914; see Vetor by Weesner v. Vetor, 634 N.E.2d 513, 516 (Ind.Ct.App.1994). Reasonable care requires that the care employed and precautions used be commensurate with the danger involved under the circumstances of a particular case. Ross, 619 N.E.2d at...