Vetor by Weesner v. Vetor

• Decision Date: 04 May 1994
• Docket Number: No. 18A05-9308-CV-298,18A05-9308-CV-298
• Citation: 634 N.E.2d 513
• Parties: Saria VETOR, a minor, by Next Friend Pamela WEESNER, Appellants-Plaintiffs, v. Robert A. VETOR, John Charles Vetor, and John Robert Vetor, Appellees-Defendants. 1 .
• Court: Indiana Appellate Court

Page 513

634 N.E.2d 513

Saria VETOR, a minor, by Next Friend Pamela WEESNER Appellants-Plaintiffs, v. Robert A. VETOR, John Charles Vetor, and John Robert Vetor Appellees-Defendants.

No. 18A05-9308-CV-298 ¹.

Court of Appeals of Indiana First District.

May 4, 1994.

Joe Keith Lewis, Fishburne, Lewis & Elliott, Marion, for appellants.

Mary K. Reeder, Laura K. Taylor, Riley Bennett & Egloff, Indianapolis, John M. Feick, Cross, Marshall, Schuck, Deweese Cross & Feick, P.C., Muncie, for appellees.

ROBERTSON, Judge.

Saria Vetor appeals the entry of summary judgments in favor of her grandfather, defendant John Robert Vetor, and her father, defendant, Robert A. Vetor, in her action against them for their negligence in the supervision of her on May 5, 1991. We affirm the summary judgment in favor of Saria's father but reverse the judgment in favor of her grandfather.

Saria alleges in her complaint that she was visiting her father at the property owned by her grandfather when she was bitten in the face by a chow/german shepard mix dog owned by her father's brother, defendant John Charles Vetor. Saria alleges that her injuries from the bite were proximately caused by the failure of her father and grandfather to protect her from the dog, which had wandered onto her grandfather's property, when each of them knew or should have known that the dog would bite her.

The designated evidentiary materials show the existence of a factual dispute over whether the dog bit or scratched Saria. However, there appears to be no dispute that the dog acted suddenly, without warning. Over the twenty-minute period preceding the attack, Saria had been playing on a slide and had stopped repeatedly to pet the dog after she had come down the slide. Her grandfather had been seated in a lawn chair, approximately four feet from the slide, and had himself been petting the dog, when the dog jumped upon Saria. He had pulled the dog off of Saria immediately. Saria's father had been in the barn with a friend working on an automobile when the dog attack occurred. He had entrusted Saria's care to his father. The incident had occurred on a weekend when Saria's father was exercising visitation rights as her noncustodial parent. ²

On appeal from the grant or denial of summary judgment, we use the same standard in ascertaining the propriety of summary judgment as does the trial court. Newhouse v. Farmers National Bank of Shelbyville (1989), Ind.App., 532 N.E.2d 26, 28. Summary judgment is appropriate and "shall be rendered forthwith if the designated evidentiary matter shows 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." Ind.Trial Rule 56(C).

On appeal, however, the party which lost in the trial court has the burden to persuade the appellate tribunal that the trial court's decision was erroneous. Ind. Department of Revenue v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d 1311, 1313. Our proper role includes the careful scrutiny of the trial court's determination to assure that the non-prevailing party is not improperly prevented from having her day in court. Id.

Indiana Trial Rule 56(C) provides that, at the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. A party opposing the motion shall also designate to the court each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto. Id. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court. Id. No judgment rendered on the motion shall be reversed on the ground that there is a genuine issue of material fact unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court. T.R. 56(H).

Saria's claim against her father proceeds upon the theory that he was negligent in his supervision of her. However, at the time of the injury-producing incident, Saria's father had entrusted Saria's grandfather with her care. There is no evidentiary dispute on this point. Saria does not allege that her father failed to exercise reasonable care in delegating responsibility for her care to his father; neither has she offered any evidence establishing that to do so was a breach of the standard of care owed to her by her father. To the contrary, the evidence shows no reason to doubt Saria's grandfather's ability to care for her.

Saria's father had no relationship whatsoever with the dog which bit her. He did not own either the dog or land upon which it roamed, and there is no evidence that he played any role in the dog's keeping. That being the case, Saria has not shown her father breached his duty of reasonable care to her and summary judgment was properly entered in his favor.

We turn then to the liability of Saria's grandfather. Saria's grandfather owed her a duty of reasonable care as the person to whom her care had been entrusted, Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701, 706; Johnson v. Pettigrew (1992), Ind.App., 595 N.E.2d 747, 753, trans. denied; Pettery v. Groff (l986), Ind.App., 491 N.E.2d 583, and as the owner of the land upon which she was a child invitee. Ross v. Lowe (1993), Ind., 619 N.E.2d 911, 914; Pettigrew, 595 N.E.2d at 750. In addition, the keeper of an animal has a duty to provide for the restraining and confinement of that animal, Ross, 619 N.E.2d at 914, and may become liable for damages the animal causes when the keeper is otherwise negligent in the manner of its keeping and control. Alfano v. Stutsman (1984), Ind.App., 471 N.E.2d 1143, 1144. In such cases, the person in control of the animal is bound to take note of the natural propensities of the type and breed of the animal in question. Id. ³

The case thus turns upon whether it can be said as a matter of law that Saria's grandfather used reasonable care for her safety. The designated evidentiary materials do not show a genuine issue of material fact concerning the state of Saria's grandfather's knowledge of a dangerous propensity on the part of this particular dog. The dog had either not exhibited any acts of viciousness, or if it had, none of the deposed parties were aware of any such acts. And, while we recognize that a dangerous propensity on the part of an animal may be deduced from even playful conduct, Puckett v. Miller (1978), 178 Ind.App. 174, 381 N.E.2d 1087, 1090; Doe v. Barnett (1969), 145 Ind.App. 542, 551, 251 N.E.2d 688, and extends to any act on the part of the animal which might endanger the safety of persons or property in a given situation, Ross v. Lowe (1993), Ind., 619 N.E.2d 911, 914, the designated record does not contain any basis for concluding that Saria's grandfather had in fact been given any warning or notice of a dangerous propensity.

Even so, reasonable care requires that the care employed and precautions used be commensurate with the danger involved under the circumstances of a particular case. Id. The safeguards to be used, precautions to be observed and the foresight to be exercised are usually matters to be resolved by the jury. Id. This case is not an exception. Saria's peculiar status as a child invitee may alter the degree of reasonable care and diligence required on the part of...