Ross v. Lowe
| Decision Date | 31 December 1992 |
| Docket Number | No. 35A02-9202-CV-72,35A02-9202-CV-72 |
| Citation | 605 N.E.2d 786 |
| Court | Indiana Appellate Court |
| Parties | Thomas E. ROSS, Appellant-Plaintiff, v. Val D. LOWE, Appellee-Defendant. |
Jack E. Morris, Samuel W. Jarjour, Benson, Pantello, Morris & James, Fort Wayne, for appellant-plaintiff.
Thomas L. Wooding, J. Frank Kimbrough, Wilks and Kimbrough, Fort Wayne, for appellee-defendant.
Thomas Ross appeals from the grant of a directed verdict in favor of Val Lowe. Upon appeal, Ross argues that the trial court's ruling was erroneous because Ross had successfully presented a prima facie case with respect to each element of his complaint for personal injury as a result of an attack by Lowe's dog.
We affirm.
The facts most favorable to Ross are as follows. Ross was employed as a meter reader by Northern Indiana Public Service Company (NIPSCO). Early in the afternoon of July 29, 1988, Ross went to the home of Val Lowe in Fort Wayne, to read Lowe's meter, although Lowe's residence was not normally on Ross's route. Checking his hand-held computer, Ross noted that Lowe's house was coded as having a "bad dog" in the area where the meter was located. This code meant that a dog was present and that caution should be exercised. As Ross walked in Lowe's driveway toward the fenced-in backyard, he saw a sign reading "BEWARE OF THE DOG" and heard a dog on the other side of the fence barking, growling, and jumping at the gate. He decided at this point to seek out the owner of the property.
As he was walking to the front door, Ross met Emily, Lowe's 12-year-old daughter, in the driveway. When Ross asked to talk with the owner, Emily stated that her father was not at home. Ross identified himself as a NIPSCO employee and asked Emily to confine the dog, a purebred boxer, inside the house. Additionally, Ross asked Emily to make sure that both the storm door and the inside door were shut after the dog was inside. After a short wait, Emily indicated that the dog was inside and that Ross could safely enter the backyard fence. Before entering, Ross once again asked whether both doors were closed, to which Emily responded in the affirmative.
Once inside the fence, Ross walked toward the meter while at the same time glancing at the back door. In fact, the inside door was not closed, but a glare on the outside door prevented Ross from discovering this until he had progressed several paces across the back yard. As soon as he saw that the inside door was open, Ross quickly retreated toward the gate. However, before he could exit the backyard, he heard a "crash" and he turned to see the dog breaking through the storm door. The dog knocked Ross to the ground, dislocating his shoulder. Before Emily could pull the dog off, Ross had suffered scratches and cuts to his face and hip, had lost his eyeglasses, and had sprayed mace into his own face while attempting to spray the dog's face, which was very near his own at the time.
Ross sued Lowe for damages incurred as a result of his injuries. At the conclusion of Ross's case-in-chief, the trial court granted Lowe's motion for a directed verdict upon grounds that Val Lowe was not negligent in entrusting the dog to Emily's care, and, in any event, any negligence upon Emily's part could not be imputed to her father. 1
Our standard for reviewing a grant of a motion for directed verdict, or judgment on the evidence, is well settled:
[Citations omitted] First Bank & Trust Company of Clay County v. Bunch (1984) 1st Dist.Ind.App., 460 N.E.2d 517, 518-19.
In order for his action to survive a motion for directed verdict, it was incumbent upon Ross to show, inter alia, prima facie evidence that Val Lowe was guilty of negligence in the dog attack. Lowe's negligence could have taken one of two forms: either actual, i.e., he was negligent in leaving Emily in charge of the dog; or imputed, i.e., he was vicariously liable for Emily's negligence, if any. The trial court's comments, supra, upon grant of directed verdict, clearly demonstrate its conclusion that Lowe was not negligent under either theory.
Under Indiana common law, all dogs are presumed to be harmless domestic animals, regardless of their size or breed. Burgin ex rel. Akers v. Tolle (1986) 4th Dist.Ind.App., 500 N.E.2d 763, 765. This presumption may be overcome by evidence that it had a known or dangerous propensity, as shown by specific acts of the particular dog. Id. When evidence of dangerous propensity is shown, it gives rise to a duty on the part of the owner or keeper of the animal to use reasonable care to prevent the dog from biting or otherwise injuring someone. Id.
On the other hand, when negligence is claimed, i.e., in the absence of evidence that the owner knew of the dog's dangerous propensities, the rule is that the owner is bound to know the natural tendencies of the particular class of animals to which his dog belongs. Burgin, supra, 500 N.E.2d at 766. If the propensities of the class to which the dog belongs are the kind which one might reasonably expect would cause injury, the owner must use reasonable care to prevent injuries from occurring. Id.
Thus, whether the dog's vicious propensities are known or whether they are not known, the owner's duty is the same in either case: he must use reasonable care to prevent injury. The importance of determining whether the dog had vicious propensities of which the owner reasonably should have known therefore lies not in determining whether a duty existed, but rather in assessing whether the owner's conduct sufficiently discharged his duty. Accordingly, the duty of reasonable care requires more of an owner of a dog which has vicious propensities than it does of one who owns a dog with no such known propensity.
Ross argues in his appellate brief that Lowe's dog had known vicious propensities, thus triggering the higher duty. Without deciding that he is correct in this regard, we conclude that the precautions which Lowe undertook to safeguard others from injury by his dog were sufficient as a matter of law even under the more rigorous "vicious propensity" standard of measuring his conduct.
The first theory upon which Lowe may be found to have been guilty of actual negligence stems from the way in which he penned his dog. The dog was kept in a backyard which was enclosed by a six-foot fence, with a latched gate. In addition, upon the fence was a clearly visible sign warning others to "BEWARE OF THE DOG". The dog was thus sufficiently penned so as to protect the public from injury, even if it was known to have vicious propensities. Moreover, Ross was injured while inside the fenced yard, where he was aware of the dog's close proximity, and where he had been warned to beware of the dog. The trial court correctly concluded that Lowe was not negligent in the way he penned his dog. See, e.g., Alfano v. Stutsman (1984) 3d Dist.Ind.App., 471 N.E.2d 1143 ().
Ross also argues that Lowe was guilty of actual negligence in leaving Emily in charge of the dog in his absence. The question of negligence in this regard is fact sensitive, and requires an evaluation of Emily's capacity in light of the dog's nature. Lowe's dog is a purebred boxer, a fairly large dog, which was purchased as both a companion for his children, and as a "deterrent", presumably to deter would-be wrongdoers with regard to Lowe's property and children. Although the dog lunged and barked at the gate when people walked nearby, the dog was not trained to attack, and there is no evidence that the dog had ever attacked anyone before. Emily was twelve years old at the time of this occurrence, and there was nothing to suggest that she was less than average in size and mental capacity for a child of her age. Ross presented no evidence which gives rise to a reasonable inference that Emily could not adequately control the dog. In fact, it was Emily who ultimately succeeded in pulling the dog away from Ross long enough for him to escape. There is no reason to conclude that Emily was incapable of controlling the dog. More to the point, there is no evidence from which to draw an inference that Lowe was negligent in leaving the dog under Emily's supervision.
In summary, Lowe's actual negligence was not a proximate cause of Ross's damages. However, our inquiry does not end there. Although the precautions which Lowe undertook in confining his dog and warning others of its presence constituted reasonable care, there remains the questions of whether Emily was negligent and whether her negligence, if any, may be imputed to her father.
The facts most favorable to Ross show that he explicitly told Emily to close both doors after putting the dog inside. Moreover, once she informed him that the dog was inside and that he could enter the backyard, he again asked her whether both doors were shut, to which she responded in the affirmative. The question of whether a particular course of conduct amounts to negligence is generally a question of fact for the fact finder. Knowing that the dog was agitated by Ross's presence (as evidenced by its barking and...
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Wells v. Hickman
...argument on October 6, 1995, at Indiana University School of Law in Bloomington.2 These exceptions were recognized in Ross v. Lowe (1992), Ind.App., 605 N.E.2d 786, 790-91. This case, however, was vacated on other grounds by our supreme court in Ross v. Lowe (1993), Ind., 619 N.E.2d 911.3 W......
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