Layman v. Atwood

• Decision Date: 20 December 1977
• Docket Number: No. 1-477A69,1-477A69
• Citation: Layman v. Atwood, 370 N.E.2d 933, 175 Ind.App. 176 (Ind. App. 1977)
• Parties: Lana LAYMAN by Dana Layman, her father and next friend, and Dana A. Layman, Appellants, v. Larry L. ATWOOD and Sherron Atwood, Appellees.
• Court: Indiana Appellate Court

Page 933

370 N.E.2d 933

175 Ind.App. 176

Lana LAYMAN by Dana Layman, her father and next friend, and Dana A. Layman, Appellants, v. Larry L. ATWOOD and Sherron Atwood, Appellees.

No. 1-477A69.

Court of Appeals of Indiana, First District.

Dec. 20, 1977.

Hollingsworth, Martin, Wharry & Pedersen, Lebanon, for appellants.

Faust & Joyce, Indianapolis, for appellees.

LOWDERMILK, Judge.

Plaintiff-appellant, Lana Layman (Layman), perfects this appeal following the granting by the trial court of a motion for summary judgment in favor of defendants-appellees, Larry L. and Sherron Atwood (Atwoods).

The facts necessary for our disposition of this appeal are as follows: This action was commenced after Layman, an 8 year old girl, was bitten by a dog owned by the Atwoods. The Atwoods moved for summary judgment. The Atwoods' motion for summary judgment was accompanied by affidavits which provided in pertinent part as follows:

" * * *nt

1. That he acquired the Saint Bernard puppy involved in this cause on the 15th day of June, 1972.

2. That the dog was confined to defendant's house and yard and has always been an affectionate pet and companion to defendant's children.

3. That the dog prior to the incident in question in this litigation had never bitten or harmed anyone in any way.

* * * "he

Layman filed no affidavits in opposition to the affidavits filed by the Atwoods. Also, the Atwoods took the depositions of Layman, her mother and father, but the depositions were never published.

As stated in Swanson v. Shroat (1976), Ind.App., 345 N.E.2d 872 at 874 "The granting of a motion for summary judgment is appropriate '. . . if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Indiana Rules of Procedure, Rule 56(C). The burden is on the proponent of the motion to show that no genuine issues of fact exist, so in deciding whether to grant a summary judgment, facts set forth in the opponent's affidavit are taken as true, and depositions, admissions, answers to interrogatories, and testimony are liberally construed in favor of the opponent. Podgorny v. Great Central Insurance Co. (3rd Dist.1974), Ind.App., 311 N.E.2d 640." (Original emphasis)

Further, as stated in the opinion of Renn v. Davidson's Southport Lumber Co. (1973), 157 Ind.App. 446, 451, 300 N.E.2d 682, at 686:

"It is only '(w)hen a motion for summary judgment is . . . supported as provided by this rule' that an 'adverse party' must respond 'by affidavits . . . (which) set forth specific facts showing that there is a genuine issue for trial.' Absent compliance with the rule by the moving party, summary judgment in his favor is obviously not 'appropriate', and failure of the opposing party to respond does not entitle the moving party to judgment. . . ."

Therefore, the issue we are called upon to resolve is whether, considering all of the pleadings and other papers the trial court properly had before it for consideration, there was present a genuine issue of material fact which should have been resolved at trial.

In the case at bar, before the Atwoods could prevail on their motion for summary judgment, it was necessary for them to establish that no genuine issue of material fact existed on the issue of whether they had knowledge of any vicious propensities on the part of their dog. See generally, Keane v. Schroeder (1970), 148 Ind.App. 131, 264 N.E.2d 95. Their affidavits established only that their dog was affectionate to their children, and to the best of their knowledge had never bitten anyone before. However, the affidavits filed by the Atwoods did not resolve the factual inquiry of whether or not they had knowledge of any vicious propensities of their dog generally. A dog may well be an affectionate pet to its owner's children, but vicious as to others. It is not uncommon for a person to own a dog for the very purpose of affording a certain degree of protection to his or her children.

In Doe v. Barnett (1969), 145 Ind.App. 542, at 551, 251 N.E.2d 688, at 694, this court stated:

". . . It is the act of the animal and not in the state of mind of the...