Royer v. Pryor

• Decision Date: 16 November 1981
• Docket Number: No. 1-481A126,1-481A126
• Citation: 427 N.E.2d 1112
• Parties: James H. ROYER, Defendant-Appellant, v. Kathy PRYOR, as next friend of Crystal Pryor, Plaintiffs-Appellees.
• Court: Indiana Appellate Court

Page 1112

427 N.E.2d 1112

James H. ROYER, Defendant-Appellant, v. Kathy PRYOR, as next friend of Crystal Pryor, Plaintiffs-Appellees.

No. 1-481A126.

Court of Appeals of Indiana, First District.

Nov. 16, 1981.

James R. Cotner, Cotner, Mann & Chapman, Bloomington, Evan E. Steger, Robert G. Zeigler, Ice, Miller, Donadio & Ryan, Indianapolis, for defendant-appellant.

Gary J. Clendening, Joseph D. O'Connor, III, Bunger, Harrell & Robertson, Bloomington, for plaintiffs-appellees.

STATEMENT OF THE CASE

RATLIFF, Judge.

James H. Royer appeals from the trial court's judgment entered upon verdicts in favor of Kathy Pryor in the amount of $4,750.00 and in favor of Crystal Pryor in the amount of $57,000.00 for injuries suffered as a result of Royer's negligence in permitting his tenants, Gary and Judy Srygler, to keep a vicious dog on leased premises. We reverse.

FACTS

Royer is the owner of a duplex at 126-128 Pinewood Drive, Bloomington, Indiana, the western half of which (128 Pinewood) he rented to the Sryglers. While Judy Srygler was living in Florida apart from Gary, she obtained a German shepherd, Keno, for protection. While they were still in Florida Keno had warded off an attacker of Judy, and there was also testimony that Keno had bitten a babysitter of the Srygler's son, Jimmy, upon provocation. None of this information was ever made known to Royer prior to the trial.

When the Sryglers met Royer to sign the lease on June 26, 1977, in Bloomington, Keno was present and began barking when Royer knocked on the door. Jimmy took Keno to a back bedroom where he was confined during the meeting of the parties. The lease form provided by Royer contained a provision forbidding animals on the premises, but this provision was lined out upon express agreement of the parties. The one year lease agreement contained no description of the leased premises whatsoever. The lease did, however, provide that the lessee should not make any changes to the interior of the structure; that utilities were to be furnished by the lessee; and that the lessor reserved the right to enter the premises "at any reasonable time to inspect the same and to do so upon prior notice for the purpose of showing the premises to prospective Lessees." Record at 258. Royer testified that he had hired a neighborhood girl to mow the front yard between the duplex and the street at the time the Sryglers moved in, but that since the fall of 1978 the tenants had cared for the lawn themselves.

Keno was permitted to run free in the neighborhood so long as the Sryglers or their son were with him, and on two occasions he exhibited aggressive behavior toward a UPS delivery man and a neighbor's son. None of this was communicated to Royer. However, the lessee of the other half of Royer's double, Mrs. Fleetwood, who stated that she was afraid of all big dogs, told Royer that she was afraid of Keno. On October 17, 1977, Keno severely injured the brother of another neighbor, Richard Luallen, who was a friend of the Sryglers and who initiated the interaction with Keno. The testimonies of Gary Srygler, Rick Luallen, and Kathy Pryor reflect three different versions concerning what happened at that time to precipitate the attack. Royer was not informed of this incident either.

In January 1978 a neighbor complained to the Bloomington Animal Control Commission about Keno's running free in the neighborhood, and the Commission notified the Sryglers that the dog must be restrained. Gary requested permission from Royer to build a fence around his part of the back yard because of the notification by the Commission that he must restrain Keno and because he did not want to chain him. Royer vacillated.

On February 24, 1978, Jimmy Srygler attached Keno by a twenty foot chain to the door handle of a disabled Volkswagen parked in the Srygler driveway. Crystal Pryor, age six, who had frequently played with Keno without incident, was returning home from a neighbor's house when she cut through the Sryglers' front yard. Her encounter with Keno resulted in multiple facial lacerations and permanent scars. Blood Crystal and her mother, Kathy Pryor, brought the current action against the Sryglers in April 1978. Royer was added as a party defendant in December 1979. After a three day trial beginning on November 12, 1980, the cause was submitted to the jury at 12:40 p. m. on November 14, 1980. The jury returned verdicts against all defendants at 10:00 p. m. that same date. The court entered judgment upon those verdicts at that time. Only Royer appeals therefrom.

on the snow revealed that the incident occurred about three feet from the car.

ISSUES

Royer raises the following issues for our review:

"1. Are the verdicts below supported by sufficient evidence to prove the proposition, essential to recovery by plaintiffs, that the defendant Royer had actual knowledge of the vicious or dangerous propensities of his tenants' dog before it bit plaintiff?

2. Are the verdicts below supported by sufficient evidence to prove the proposition, essential to recovery by plaintiffs, that defendant Royer exercised or retained control over his tenants' front yard or driveway where plaintiff was bitten?

3. Are the verdicts below supported by sufficient evidence to prove the proposition, essential to recovery by plaintiffs, that at the time of the incident litigated defendant Royer knew of the presence of his tenants' dog in an area over which he exercised or retained control?

4. Do Indiana Courts hold that a landowner, who is neither the owner nor the keeper of an animal, has any duty to confine or restrain such animal?

5. Were the verdicts below contrary to law because they wrongfully imposed a responsibility on a landowner for the acts of his tenants' animal, when Indiana law assigns such responsibility to the owner or keeper of such animal?"

DISCUSSION AND DECISION

In order that review of this case may be conducted from a proper perspective, certain appellate principles must be kept in mind. First, in determining whether a judgment is contrary to law or whether there is sufficient evidence to support a verdict, this court will neither weigh the evidence presented below nor judge the credibility of witnesses. Brand v. Monumental Life Insurance Co. (1981) Ind., 417 N.E.2d 297; Monumental Life Insurance Co. v. Hakey (1976) 171 Ind.App. 56, 354 N.E.2d 333, trans. denied (1977). Second, we shall view all the evidence from a point of view most favorable to the verdict and judgment entered thereon, and we must affirm if the verdict is supported by substantial evidence of probative value to establish each material element of the claim. Weenig v. Wood (1976) 169 Ind.App. 413, 349 N.E.2d 235, trans. denied. Accord, Fleetwood v. Mirich (1980) Ind.App., 404 N.E.2d 38; State v. Thompson (1979) Ind.App., 385 N.E.2d 198, trans. denied. Third, in the absence of timely objections, the trial court's instructions as read to the jury, even if erroneous, become the law of the case. Board of Commissioners of Monroe County, Indiana v. Hatton (1981) Ind.App. 427 N.E.2d 696. State v. Hall (1981) Ind.App., 415 N.E.2d 89 (transfer pending); DDR Computer Service Bureau, Inc. v. Davis (1980) Ind.App., 411 N.E.2d 722, trans. denied. "The instruction of the court being the law of the case, it follows that if the verdict was not in conformity with the instruction, it is contrary to law." Kundred v. Bitler (1931) 93 Ind.App. 691, 698, 177 N.E. 345, trans. denied (1932).

In issues one, two, and three appellant Royer contends that the verdicts rendered against him were contrary to law because they did not conform to the trial court's instructions numbered three and eleven:

"COURT'S FINAL INSTRUCTION NO. 3

In this case, the plaintiffs have the burden of proving the following propositions by a preponderance of the evidence before they can recover from the defendants (sic) James H. Royer, Jr.:

First, that Mr. Royer was the owner of the premises occupied by the defendants Srygler;

Second, that Mr. Royer exercised or retained control over a portion of the premises occupied or used by the defendants Srygler;

Third, that Mr. Royer knew the Sryglers were keeping a dog with vicious or dangerous propensities in the area over which he exercised or retained control;

Fourth, that Mr. Royer knew or in the exercise of reasonable care should have known that children the age of Crystal Pryor could come into contact with the dog in the area over which he exercised or retained control;

Fifth, that Mr. Royer was negligent in that he did not require the Sryglers to remove the dog from the area over which he exercised or retained control;

Sixth, that Crystal Pryor was bitten and injured by the dog in the area over which Mr. Royer exercised or retained control; and

Seventh, that Mr. Royer's negligence was a proximate cause of Crystal Pryor's injuries.

If you find that the plaintiffs have proven each of these propositions by a preponderance of the evidence, then you should return a verdict for the plaintiffs and against the defendant James H. Royer. However, if you find that the plaintiffs have failed to prove any one or more of these propositions by a preponderance of the evidence, then your verdict should be for the defendant, James H. Royer, and against the plaintiffs."

"COURT'S FINAL INSTRUCTION NO. 11

Generally, a landlord is not liable to his tenants or to other persons coming into the rental premises for injury caused by a dangerous condition which comes into existence after his tenants have taken possession of the premises.

To this general rule, however, are certain exceptions.

A landlord exercises or retains control (1) over any portion of the premises and (sic) to the extent that he may expressly reserve by the terms of the rental agreement, or (2) over any portion of the premises used in common by two or more different tenants.

A landlord thus exercising or retaining control over a portion of the premises has a duty to all...