Irvine v. Rare Feline Breeding Center, Inc.

• Citation: 685 N.E.2d 120
• Decision Date: 10 September 1997
• Docket Number: No. 29A04-9703-CV-120,29A04-9703-CV-120
• Parties: Scott IRVINE, Appellant-Plaintiff, v. RARE FELINE BREEDING CENTER, INC., and Mosella Schaffer, Appellees-Defendants.
• Court: Court of Appeals of Indiana

Page 120

685 N.E.2d 120

Scott IRVINE, Appellant-Plaintiff, v. RARE FELINE BREEDING CENTER, INC., and Mosella Schaffer,

Appellees-Defendants.

No. 29A04-9703-CV-120.

Court of Appeals of Indiana.

Sept. 10, 1997.

John J. Sullivan, Indianapolis, for Appellant-Plaintiff.

Edward F. Harney, Jr., Hume Smith Geddes Green & Simmons, Indianapolis, for Appellees-Defendants.

OPINION

CHEZEM, Judge.

Case Summary

Appellant-Plaintiff, Scott Irvine ("Irvine"), appeals an order denying his motion for partial summary judgment. We affirm.

Issues

The parties raise various issues which we restate as:

I. Whether strict liability is the law in Indiana wild animal cases;

II. Whether any exceptions or defenses to strict liability should be recognized; and,

III. Whether a genuine issue of material fact exists regarding either Irvine's status or any available defenses.

Facts and Procedural History

For the past thirty years, Mosella Schaffer ("Schaffer") ¹ has lived on a fifty acre farm in Hamilton County, Indiana where she has raised and maintained exotic animals. These animals have included zebras, llamas, camels, kangaroos, and, beginning in 1970, Siberian tigers. Although her original intent was to breed and sell the animals, she soon found it difficult to part with many of them.

In 1993, Scott Bullington ("Bullington") was renting a room in the garage area of Schaffer's house. Aware of his friend Irvine's interest in wild animals, Bullington informed Irvine of Schaffer's farm and the animals she kept there. Irvine, then in his late twenties, began to stop by and see the animals as per Schaffer's open invitation. Over the next two years, Irvine visited Schaffer's farm several dozen times. During these visits, people would occasionally pet the tigers through a fence.

On the afternoon of December 2, 1995, Irvine arrived at Schaffer's home to see Bullington. The two men drank alcohol and watched television until early evening when Bullington announced that he had to leave to attend his employer's Christmas party. Because Irvine had consumed a substantial amount of alcohol, Bullington told Irvine he could stay over night on the couch. Some time after Bullington had left, Irvine exited Bullington's apartment, walked to the front of Schaffer's property and visited with the llamas and zebras. As he was doing so, Schaffer drove up, stopped her car, had a brief, friendly conversation with Irvine, and went into her house.

Around 8:00 p.m., Irvine decided to visit the tigers before going to sleep. Thus, he went through Schaffer's garage, proceeded through the utility room, continued through the sun room, and ended up in the back yard. Irvine then approached the wire caging, as he and others had done in the past, placed a couple fingers inside the enclosure, and attempted to pet a male tiger. As he was scratching the male tiger, a female tiger made some commotion, which caused Irvine to look away from the male tiger. At that moment, the male tiger pulled Irvine's arm through the two inch by six inch opening of the wire fence.

Upon hearing Irvine's shouts, Schaffer came out of her house, banged an object against the fence, and freed Irvine. Schaffer immediately drove Irvine to the hospital. Irvine was treated and admitted to the hospital. Later, he was transferred to another hospital, and underwent six surgeries during a thirteen day hospital stay. Further surgeries are indicated though Irvine is uninsured.

On May 30, 1996, Irvine filed a complaint against Schaffer containing four counts: negligence, strict liability, nuisance, and punitives. On September 6, 1996, Irvine filed his motion for partial summary judgment on the basis that incurred risk and assumption of risk are not valid defenses to a strict liability wild animal claim, on the basis that assumption of risk is not available in a non-contract case, and on the basis that the defense of open and obvious is not available in an animal liability case. Schaffer filed a response on January 14, 1997. Irvine filed a reply on January 21, 1997. The trial court denied Irvine's motion for summary judgment on the strict liability count, denied summary judgment on the issue of assumption of risk, and granted summary judgment on the issue of open and obvious. The trial court granted Irvine's petition to certify three issues for interlocutory appeal: 1) whether incurred risk or other defenses are available in a strict liability animal case; 2) whether Irvine was an invitee as a matter of law; and 3) whether the defense of assumption of risk is available in a noncontractual case. We accepted jurisdiction of the interlocutory appeal.

Discussion and Decision

Irvine first argues that Indiana has historically adhered to strict tort liability in wild animal cases. He further argues that when the Indiana Comparative Fault Act (Ind.Code § 34-4-33-1 et seq., the "Act") was adopted, it did not change the law in wild animal cases. Moreover, he claims that no exceptions to strict liability in wild animal cases have ever been applied in Indiana. He also argues that even if his status is somehow relevant, he was clearly an invitee. Thus, he asserts that the trial court should not have denied his summary judgment on the strict liability issue. In contrast, Schaffer argues that Indiana has not adopted, and should not adopt, strict liability in wild animal cases. In the alternative, Schaffer asserts that if strict liability is the general rule, an exception should apply here.

Upon review of the grant or denial of a summary judgment motion, we apply the same legal standard as the trial court: summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); North Snow Bay, Inc. v. Hamilton, 657 N.E.2d 420, 422 (Ind.Ct.App.1995). On review, we may not search the entire record to support the judgment, but may only consider that evidence which had been specifically designated to the trial court. Id. The party appealing the trial court's grant or denial of summary judgment has the burden of persuading this court that the trial court's decision was erroneous. Id.

I. Liability in a Wild Animal Case

We first address whether strict liability is the common law rule for wild animal cases in Indiana. The parties have not cited and we have not found a case specifically applying strict liability to a true wild animal case in Indiana. However, the basic rule has been frequently stated in various contexts. Holt v. Myers, 47 Ind.App. 118, 93 N.E. 31 (1910) (mentioning wild animal strict liability rule although case dealt with vicious dog); Gordan v. Kaufman, 44 Ind.App. 603, 89 N.E. 898 (1909); Bostock-Ferari Amusement Co. v. Brocksmith, 34 Ind.App. 566, 73 N.E. 281 (1904) (setting out wild animal rule and its rationale, but not applying it because bear's inherent dangerousness was not cause of harm); Partlow v. Haggarty, 35 Ind. 178 (1871); see also Hill v. Rieth-Riley Constr. Co., 670 N.E.2d 940, 945 (Ind.Ct.App.1996) ("The term 'inherently dangerous' is more properly applied to activities or instrumentalities which are, by their nature, always dangerous, i.e. blasting or wild animals.") Accordingly, we have little difficulty concluding that Indiana's common law recognized the strict liability rule for wild animal cases--despite the fact that previously, Indiana courts have not had the opportunity to apply the rule.

We next address the issue of whether the adoption of the Act changed the common law rule of strict liability in wild animal cases. "We presume the legislature does not intend by the enactment of a statute to make any change in the common law beyond what it declares, either in express terms or by unmistakable implication." Rocca v. Southern Hills Counseling Center, Inc., 671 N.E.2d 913, 920 (Ind.Ct.App.1996). An abrogation of the common law will be implied (1) where a statute is enacted which undertakes to cover the entire subject treated and was clearly designed as a substitute for the common law; or, (2) where the two laws are so repugnant that both in reason may not stand. Id. "As a statute in derogation of the existing common law, the Act must be strictly construed." Indianapolis Power &amp Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 673 (Ind.1991).

The Act, enacted in 1983 and effective in 1985, "governs any action based on fault[.]" Ind.Code § 34-4-33-1. Strict liability, by definition, is liability without fault. Black's Law Dictionary 991 (abridged 6th ed.1991). Thus, the Act would seem to be inapplicable to a strict liability action. The legislative history lends further support for this conclusion. The original version of Ind.Code § 34-4-33-2 provided that "Fault," for purposes of the Act, "include[d] any act or omission that [was] negligent, willful, wanton, reckless, or intentional toward the person or property of others, or that subject[ed] a person to strict tort liability, but [did] not include an intentional act. The term also include[d] breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid injury or to mitigate damages." (Emphasis added).

By the time of its effective date, that same section had been changed to its current form: " '[f]ault' includes any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid injury or to mitigate damages." Ind.Code § 34-4-33-2. The current form includes no reference to strict liability. Narrowly construing the Act, we conclude that it does not explicitly apply to a strict liability claim. See Templin v. Fobes, 617 N.E.2d 541, 544 n. 1 (Ind.1993) (products liability...