Brooke Brown, by next friend Mark Brown v. Southside Animal Shelter, Inc., Humane Society of Clinton County, Inc., and the City of Indianapolis ( 2021 )

FILED
Jan 13 2021, 9:57 am
Opinion on Rehearing CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Robert D. King, Jr. SOUTHSIDE ANIMAL SHELTER,
David R. Thompson INC.
The Law Office of Robert D. King, Jr., Laura S. Reed
P.C. Riley Bennett Egloff LLP
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brooke Brown, by next friend January 13, 2021
Mark Brown, Court of Appeals Case No.
Appellant-Plaintiff, 20A-CT-66
Appeal from the Marion Superior
v. Court
The Honorable Timothy Oakes,
Southside Animal Shelter, Inc., Judge
Humane Society of Clinton Trial Court Cause No.
County, Inc., and the City of 49D02-1704-CT-15339
Indianapolis,
Appellees-Defendants
May, Judge.
[1] On October 15, 2020, we held the trial court erred when it granted summary
judgment because Southside Animal Shelter “had a duty to inform the Browns
of Grieg’s past bite history, and because there are issues of material fact
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regarding whether Southside breached that duty[.]” Brown by Brown v. Southside
Animal Shelter, Inc., 2020 WL 6066649 at *5 (Ind. Ct. App. October 15, 2020).
Southside requested rehearing, alleging our opinion did not address “the issues
of the Release and the lack of evidence of fraud that entitle Southside to
summary judgment even if it had a duty to the Browns[.]” (Appellant’s Br. on
Rehearing at 5.) While those issues were implicitly addressed when we held
dispositive the legal issue of whether Southside could be held liable for Brooke’s
injuries, we grant rehearing to clarify our opinion and explicitly state that there
exist issues of material fact regarding the matters raised in Southside’s petition
for rehearing. We reaffirm our original opinion in all respects.
[2] Southside’s petition for rehearing first directs us to the release language in the
adoption contract signed by Mark Brown when adopting Grieg. That contract
states:
The undersigned agrees that the health and history of this animal
is unknown and for that reason the adopter releases the
Southside Animal Shelter and all it’s [sic] representatives from all
liability, claims and damages should the animal become ill or die,
and from any situations that may arise by reason of the animal’s
actions, toward the person or property of the adopter or any
other person. The undersigned owner agrees that all further
medical care and bill [sic] are their responsibility as of the signing
of this agreement.
(Appellant’s App. Vol. II at 115.) Southside claims there existed no fraud, but
nonetheless, the language therein relieves “Southside from liability from
situations arising from Grieg’s actions.” (Appellant’s Br. on Rehearing at 6.)
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However, we noted in our opinion that “there also remains a question of fact
regarding whether Southside exercised reasonable care in ascertaining Grieg’s
behavioral history prior to allowing the Browns to adopt him.” Brown, slip op.
at *5.
[3] This determination about the actions taken, or not taken, by Southside prior to
Mark signing the release directly relates to whether Southside misrepresented its
knowledge regarding Grieg’s history when reporting Grieg’s history was
“unknown” in the release. (Appellant’s App. Vol. II at 115.) As Southside
notes in its brief on rehearing, this is the only theory under which Mark can
proceed with his fraud claim. There exist issues of material fact regarding the
information communicated to Southside prior to Grieg’s adoption.
[4] For example, Clinton County Humane Society (“CCHS”) office manager
Cassandra Tate testified in a deposition that she told Darcie Kurtz “the fact that
[Grieg] did not get along with other dogs or small children” and “that there was
a bite previously to a child, and that he was not to be with younger children.”
(Id. at 163.) Tate also testified that she gave Kurtz a “Behavior History Form”
(id. at 204), which she summarized as saying, “[t]hat [Grieg] was not good with
small children, that there was a previous bite history, and that he was not good
with other dogs.” (Id. at 176.) Southside contends it was first aware of Grieg’s
bite history on January 2, 2016, after Grieg bit Brooke because Indianapolis
Animal Care and Control (“IACC”) employee Julie Zink “looked up his
microchip number” and told Southside owner Rosalyn Ellis that “he had been
involved in biting a child in February of ’15.” (Id. at 68.) Ellis also testified at a
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deposition that she did not “personally notice any signs of aggression of any
nature” and that she would not “have adopted [Grieg] if [she] had known of his
prior bite history[.]” (Id. at 69.)
[5] These questions of material fact are also related to the other issue Southside
claims we did not address in our original opinion – the relationship between
Kurtz and Southside, and whether that relationship means Kurtz’s knowledge
regarding Grieg can be imputed to Southside. As we noted in our original
opinion:
Southside contends Kurtz was not an employee or volunteer at
the time of Grieg’s arrival at Southside, and thus any information
CCHS gave Kurtz could not be considered information given to
Southside by virtue of Kurtz as Southside’s agent. The Browns
maintain Kurtz was a volunteer at Southside at the time relevant
to this action.
Brown, slip op. at *5.
[6] Specifically, Southside owner Ellis testified that she, at one point in time, was
“hired to manage the [Southside] shelter” and then Kurtz and another
employee had “a falling-out” and Kurtz left. (Appellant’s App. Vol. II at 59.)
Ellis also testified, “Darcie Kurtz was not – during the week, the eight days that
I had [Grieg] at the shelter, Darcie Kurtz did not work for me. Darcie Kurtz
was working for the Low Cost Spay Neuter clinic in Brownsburg transporting
animals back and forth to Clinton County for spays and neuters.” (Id. at 61.)
Brown points us to Tate’s testimony that Kurtz “was working with Brownsburg
Low Cost Spay Neuter” but that “she was affiliated with Southside as well.”
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(Id. at 163-4.) When asked about Kurtz’s relationship with Southside, Tate
testified she “knew she had either worked or volunteered there.” (Id. at 164.)
[7] As noted in our original opinion, these issues of material fact preclude summary
judgment. Having clarified the issues raised in Southside’s petition for
rehearing, we reaffirm our original opinion in all respects.
[8] Riley, J., and Altice, J., concur.
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