Plesha v. Edmonds ex rel. Edmonds

• Decision Date: 20 October 1999
• Docket Number: No. 45A04-9904-CV-168.,45A04-9904-CV-168.
• Citation: 717 N.E.2d 981
• Parties: Nicholas PLESHA and Randie Plesha, Appellants-Defendants, v. Robert G. EDMONDS, Jr., by Next Friend Robert G. EDMONDS, Sr., and Debbie Edmonds; and Robert G. Edmonds, Sr. and Debbie Edmonds, Individually, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

717 N.E.2d 981

Nicholas PLESHA and Randie Plesha, Appellants-Defendants, v. Robert G. EDMONDS, Jr., by Next Friend Robert G. EDMONDS, Sr., and Debbie Edmonds; and Robert G. Edmonds, Sr. and Debbie Edmonds, Individually, Appellees-Plaintiffs.

No. 45A04-9904-CV-168.

Court of Appeals of Indiana.

October 20, 1999.

Steven P. Polick, Tammy S. Sestak, Steven P. Polick & Associates, P.C., Highland, Indiana, Attorneys for Appellants.

Kevin C. Smith, Benjamen W. Murphy, Thomas A. Clements, Ruman Clements Tobin & Holub, P.C., Hammond, Indiana, Attorneys for Appellees.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

Nicholas and Randie Plesha appeal from a judgment in favor of Robert and Debbie Edmonds, individually and as the parents of Robert G. Edmonds, Jr. ("Rob"), a minor. The Edmonds filed their complaint for damages against the Pleshas after Rob was bitten by the Pleshas' dog, Sampson. The Edmonds alleged, and the trial court found, that the Pleshas violated a Hammond city ordinance ("Ordinance") which requires that dogs be kept under restraint.

We affirm.

ISSUES

We restate and address the following issues:

1. Whether the trial court erred when it denied the Pleshas' motion for judgment on the evidence.

2. Whether the evidence was sufficient to support the trial court's determination that the Pleshas violated the Ordinance, proximately causing Rob's injuries.

FACTS AND PROCEDURAL HISTORY

On July 16, 1995, fourteen-year-old Rob and a friend were walking across an open field owned by the Orchard Drive Baptist Church¹ and leased to the Pleshas, who lived adjacent to the church and open field. The boys were taking their usual route to watch a softball game at a nearby ball park. There were no markers identifying the boundary between the Plesha property and the church property, and the neighborhood children regularly traversed the open field to reach the park.

The Pleshas were hosting a barbeque in their backyard and had taken their dog, Sampson, off his chain so he could play. As Rob and his friend walked by, Sampson began barking and ran towards them. The Pleshas yelled after Sampson to "stop" and told the boys, "Whatever you do, don't move. He won't hurt you if you don't move." Record at 231. Rob's friend ran, but Rob remained still as he had been instructed. Sampson then bit Rob several times as Rob tried to protect himself by pushing the dog away. Randie Plesha grabbed Sampson and pulled him away from Rob. As she was walking Sampson back to the house, the dog broke free and bit Rob one more time.

The Edmonds filed their complaint against the Pleshas on July 16, 1997, alleging that the Pleshas were negligent in failing to keep Sampson restrained. At the bench trial, the trial court took judicial notice of Hammond Ordinance Section 9151-A, which reads:

[A]ll dogs and cats shall be kept under restraint. It is an animal owner's responsibility to insure that animals on and off their real property be restrained. When off the real property, animals shall be on a leash not to exceed six feet in length; or if without [a] leash, [the] animal must be under complete control of the owner and not more than three feet from the owner. Animals on real property must be within a fenced area sufficient in height to prevent the animal to escape; or if on a leash, the animal must be secured on a leash that is at least six feet in length and located where the animal cannot trespass beyond its owner's property line.

Record at 157. Thereafter, the trial court ruled that the Pleshas' violation of the Ordinance was the proximate cause of Rob's injuries, and entered judgment in favor of the Edmonds for $2,500.00 plus costs. The Pleshas now appeal.

DISCUSSION AND DECISION

Issue One: Motion for Judgment on the Evidence

The Pleshas first contend that the trial court erred in failing to grant their motion for judgment on the evidence. Following the Edmonds' presentation of their case-in-chief, the Pleshas moved for judgment on the evidence on the grounds that Rob was a trespasser on their property. However, the trial court did not rule, in effect, denying the motion. The Pleshas then commenced with the presentation of their defense. After all the evidence had been presented, the Pleshas renewed their motion for judgment on the evidence, which the trial court denied.

Initially, we note that a motion for judgment on the evidence under Indiana Trial Rule 50 is improper at a bench trial. Benefit Trust Life Ins. Co. v. Waggoner, 473 N.E.2d 646, 647 (Ind.Ct. App.1985). A Trial Rule 50 motion addresses the issue of whether there is sufficient evidence to justify submitting the case to a jury. Id. Because the instant case was tried before the court without a jury, it should be treated as a motion for involuntary dismissal under Trial Rule 41. Villanella v. Godbey, 632 N.E.2d 786, 790 (Ind.Ct.App.1994). In ruling on a motion for involuntary dismissal, the trial court may weigh evidence, judge witness credibility, and decide whether the party with the burden of proof has established a right to relief or defense. Id. (citing T.R. 41(B)). Any error made in not granting a motion for involuntary dismissal, however, is waived by the movant's subsequent presentation of evidence. Waggoner, 473 N.E.2d at 648. Therefore, the Pleshas waived any claim of error when the trial court effectively denied their motion for involuntary dismissal and they proceeded with their case.² Having deemed the issue waived, we find no error.

Issue Two: Sufficiency of the Evidence

The Pleshas next contend that the evidence was insufficient to support the trial court's judgment that they violated the Ordinance, proximately causing Rob's injuries. See Town of Montezuma v. Downs, 685 N.E.2d 108, 112 (Ind.Ct. App.1997)

(trial court must determine whether ordinance violation is proximate cause of injury), trans. denied. When reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind.Ct. App.1996). Rather, we consider only the evidence and all reasonable inferences therefrom which support the judgment.

Id. When, as here, a trial court enters a general judgment with no findings of fact, we presume the judgment is based on findings supported by the evidence. Klebes v. Forest Lake Corp., 607 N.E.2d 978, 982 (Ind.Ct.App.1993),

trans. denied. Our standard of review in such cases is limited, and we must affirm the trial court's judgment if it can be sustained on any legal theory supported by the evidence. Id.

The evidence here establishes that the Pleshas failed to restrain Sampson with a fence or place him on a leash. Upon observing Rob and his friend, Sampson barked and ran from the Pleshas' yard to the open field where the boys were walking, charging the boys and biting Rob several times. Even after Randie Plesha attempted to pull Sampson away from Rob, the dog ran back and bit Rob once again.

The Ordinance under which the trial court found the Pleshas liable mandates that "[A]ll dogs and cats shall be kept under restraint. It is an animal owner's responsibility to insure that animals on and off their real property be restrained." (Emphases added). The unexcused or unjustified violation of a duty proscribed by a statute or ordinance constitutes negligence per se if the statute or ordinance is intended to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has occurred as a result of its violation. French v. Bristol Myers Co., 574 N.E.2d 940, 943 (Ind.Ct.App.1991), trans. denied. Clearly, the class of persons to be protected and the risk of harm to be prevented include Rob and his injuries. It is not within our prerogative, as the Pleshas suggest, to reweigh the evidence or assess the credibility of the witnesses. The evidence was sufficient to support a determination that the Pleshas failed to restrain their dog in violation of the Ordinance, and that this violation proximately caused Rob's injuries.

Nevertheless, the Pleshas argue that when correctly interpreted the Ordinance requires only that owners prevent their dogs and cats from escaping beyond their property line. Because Sampson never left their property, the Pleshas maintain they could not have violated the Ordinance. The Edmonds respond that the Ordinance requires that all dogs and cats be restrained on their owners' property by means of a mandatory fence or leash. Clearly, the Pleshas had neither.

We note that the rules relating to statutory construction are equally applicable to construing ordinances. Hobble By and Through Hobble v. Basham, 575 N.E.2d 693, 697 (Ind.Ct.App.1991). Every word in a statute must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute. Spaulding v. International Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind.1990). A statute should be examined as a whole and a strict, literal, or selective reading of individual words should not be overemphasized. Id.

Were we to give effect to the Pleshas' narrow construction of the Ordinance here, we would abrogate the Ordinance's clear mandate that "[a]nimals on real property must be within a fenced area ... or ... on a leash," (emphasis added), as well as the common law doctrine that dog owners owe a duty of reasonable care to prevent injury. See Alfano v. Stutsman, 471 N.E.2d 1143, 1144-45 (Ind.Ct.App. 1984)

. The Ordinance does not limit a dog owner's duty of reasonable care, but defines it by setting forth the manner in which a dog owner is to exercise that duty. The duty to prevent injury which can reasonably be anticipated extends beyond simply insuring that a dog stays within its owner's property line, as the Pleshas would have it.

Moreover, this court endeavors to give statutory words their plain and ordinary meaning absent a clearly manifested purpose to do otherwise. Rush v. Elkhart County Plan...