Brooke Brown, by next friend Mark Brown v. Southside Animal Shelter, Inc., Humane Society of Clinton County, Inc., and the City of Indianapolis ( 2020 )

FILED
Oct 15 2020, 8:50 am
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 October 15, 2020
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,
Appellee-Defendant
May, Judge.
[1] Brooke Brown (“Brooke”), by her next friend Mark Brown (“Brown”), appeals
the trial court’s grant of summary judgment in favor of Southside Animal
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Shelter, Inc. (“Southside”). Brown presents multiple issues for our review, one
of which we find dispositive: Whether Southside had a duty to inform the
Browns of a dog’s vicious characteristics so far as they were known or
ascertainable by exercise of reasonable care. We reverse and remand.
Facts and Procedural History
[2] In December 2014, the Clinton County Humane Society (“CCHS”) received a
dog named Grieg, 1 who had been surrendered by his owner because Grieg did
not get along with another dog in the household. Grieg was a Gordon Setter.
On January 9, 2015, CCHS adopted Grieg out to Amy Dirks, who transported
Grieg to Indianapolis. At some point shortly thereafter, Grieg attacked Amy’s
two-year-old son, Henry, causing significant injuries. After the bite incident, on
February 16, 2015, the family surrendered Grieg to the Marion County Animal
Control (“MCAC”). Amy reported on the intake form with MCAC, regarding
the incident, “Nipped at son when he was giving dog a hug around neck later in
day – lunged at son & bit him when toddler came up to pet the dog. Dog had
been hugged before, but we didn’t see the dog’s stress. The dog had had
enough.” (Appellant’s App. Vol. II at 204) (errors in original).
[3] After his arrival at the MCAC, Grieg was placed on a ten-day quarantine. At
some point during that ten-day quarantine, representatives from CCHS and
1
The record and the parties also refer to the dog as “Greg.” (See, e.g., Appellant’s App. Vol. II at 94.)
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MCAC spoke 2 about Grieg returning to CCHS. MCAC told CCHS that Grieg
had bitten a child, and CCHS reacquired Grieg on February 23, 2015. At some
point between that date and December 2015, CCHS adopted out Grieg to
someone for a brief period of time. That person returned Grieg after the dog
lunged at him.
[4] In December 2015, Darcie Kurtz, the Transport Coordinator at the Low Cost
Spay and Neuter Clinic Animal Shelter in Brownsburg, visited CCHS. Kurtz
had a pre-existing professional relationship with Southside. 3 She encountered
Grieg and contacted Rosie Ellis, the founder and president of Southside. Kurtz
asked Ellis if she could transport Grieg to Southside to be considered for
adoption. Kurtz told Ellis that Grieg was “a nice boy.” (Id. at 64.) At the
time, Grieg was approximately six to eight years old.
[5] Kurtz transported Grieg to Southside on December 23, 2015. Sara Briening, a
Southside employee, received Grieg. Briening testified in a deposition:
When Gre[i]g was brought to our facility, the person that brought
him said that he had been brought back. The man had said that
he had lunged at him but that – I was told that there was [sic] no
bite marks, there was not an actual bite. And that the general
consensus was that it was miscommunication between human
and animal or that it wasn’t a factual incident.
2
MCAC indicated CCHS contacted them and asked for Grieg back; CCHS contends MCAC called them
and asked if they wanted Grieg back.
3
The parties dispute the nature of this relationship.
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(Id. at 80-1.) Employees and volunteers at Southside observed and assessed
Grieg for eight days, during which Grieg showed no signs of aggression. At
some point during those eight days, Briening called CCHS to learn more
information about Grieg. She testified during her deposition that the person she
spoke to at CCHS did not mention the lunging incident and “that [CCHS] had
had a behavior assessment done, but that he had passed that.” (Id. at 84.)
Briening asked for a copy of the assessment, which she did not receive until
January 4, 2016.
[6] On December 29, 2015, the Browns came to the shelter to adopt a dog. The
Browns visited with Grieg that day and came back on December 31, 2015. No
one at Southside told Brown about the alleged lunging incident involving
Grieg’s former owner. On December 31, 2015, Brown paid Southside $275 to
adopt Grieg and signed a release that stated, in relevant part:
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.
(Id. at 115.)
[7] At approximately 1:00 a.m. on January 1, 2016, Grieg attacked six-year-old
Brooke, who sustained injuries to her face. Brooke required surgery and has
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permanent scarring. After the attack, MCAC retrieved Grieg and placed him
on a bite quarantine. MCAC contacted Ellis at Southside and informed Ellis
that Grieg was in bite quarantine. Ellis indicated Southside did not want Grieg
back and refunded Mark the adoption fee he paid for Grieg. MCAC
subsequently euthanized Grieg.
[8] On April 17, 2017, the Browns filed an action against Southside, alleging
Southside was negligent. On May 19, 2017, Southside filed its answer and on
June 13, 2017, Southside filed its amended answer naming CCHS, Indianapolis
Animal Control Services (“IACS”), and MCAC 4 as nonparties whose fault
proximately caused Brooke’s injuries. Brown filed an amended complaint on
August 17, 2017, adding CCHS as a defendant and alleged that CCHS was
negligent. On May 16, 2018, Brown filed a second amended complaint, adding
IACS and MCAC as defendants and alleging they also were negligent. Brown
also added claims that Southside committed fraud and constructive fraud when
it represented that Grieg’s history was unknown on the adoption release.
[9] On May 24, 2019, Southside filed a motion for summary judgment, arguing it
was not liable for Brooke’s injuries because it was not Grieg’s owner or keeper
at the time of the incident, because Mark had released Southside from liability
by signing the adoption release, and because Southside did not commit fraud
when it told Mark that Grieg’s history was unknown. On May 28, 2019, IACS
4
As IACS and MCAC are both agencies of the City of Indianapolis, their filings were made jointly by the
City of Indianapolis.
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and MCAC filed their motion for summary judgment, arguing they were not
liable for Brooke’s injuries because neither was Grieg’s owner or keeper at the
time of the incident, because of a lack of proximate cause, and because of
governmental immunity. On August 22, 2019, CCHS filed its motion for
summary judgment, arguing it was not liable for Brooke’s injuries because it
was not Grieg’s owner or keeper at the time of the incident. Mark answered all
of the motions for summary judgment, and the parties filed their replies in a
timely manner.
[10] The trial court held a hearing on the motions for summary judgment on
December 9, 2019. The trial court heard parties’ arguments and took the matter
under advisement. On December 11, 2019, the trial court granted all motions
for summary judgment, which the court memorialized in the Chronological
Case Summary with the following entry: “Parties by counsel. Oral Argument
heard on Defendants’ motion for summary judgment. Motions GRANTED.
Cause is DISMISSED. Parties may submit more formal orders if they wish.”
(Id. at 17.)
[11] On December 11, 2019, the trial court entered a written order granting IACS
and MCAC’s motion for summary judgment. On December 20, 2019, the trial
court entered a written order granting Southside’s motion for summary
judgment. On December 26, 2019, the trial court entered a written order
granting CCHS’s motion for summary judgment. The written orders are
virtually identical, and they indicate each relevant party’s motion for summary
judgment was granted by the trial court. The orders do not mention the
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dismissal of the cause; nor do they provide any reasoning for the trial court’s
decisions. On January 8, 2020, the Browns filed an appeal challenging the trial
court’s grant of summary judgment for Southside. Brown does not appeal the
trial court’s orders granting summary judgment to IACS, MCAC, or CCHS.
Discussion and Decision
[12] We review summary judgment de novo, applying the same standard as the trial
court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Drawing all
reasonable inferences in favor of the non-moving party, we will find summary
judgment appropriate if the designated evidence shows there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter
of law. Id. A fact is material if its resolution would affect the outcome of the
case, and an issue is genuine if a trier of fact is required to resolve the parties’
differing accounts of the truth, or if the undisputed material facts support
conflicting reasonable inferences. Id.[13] The initial burden is on the summary-judgment movant to demonstrate there is
no genuine issue of fact as to a determinative issue, at which point the burden
shifts to the non-movant to come forward with evidence showing there is an
issue for the trier of fact. Id. While the non-moving party has the burden on
appeal of persuading us a summary judgment was erroneous, we carefully
assess the trial court’s decision to ensure the non-movant was not improperly
denied his day in court. Id.Court of Appeals of Indiana | Opinion 20A-CT-66 | October 15, 2020 Page 7 of 12
[14] Our summary judgment policies aim to protect a party’s day in court. Id. While
federal practice permits the moving party to merely show that the party carrying
the burden of proof lacks evidence on a necessary element, we impose a more
onerous burden - to affirmatively negate an opponent’s claim. Id. A self-
serving affidavit is sufficient to preclude summary judgment if it demonstrates
there are material facts in dispute, but a self-serving affidavit will not preclude
summary judgment if it merely disputes a legal issue. AM General LLC v.
Armour, 46 N.E.3d 436, 441 (Ind. 2015). Summary judgment is not a summary
trial, and it is not appropriate just because the non-movant appears unlikely to
prevail at trial. Hughley, 15 N.E.3d at 1003-04. We “consciously err[ ] on the
side of letting marginal cases proceed to trial on the merits, rather than risk
short-circuiting meritorious claims.” Id. at 1004.
[15] Here, the dispositive issue is whether Southside owed a duty to the Browns and
thus could have been liable for the injuries Brooke sustained when bitten by
Grieg. The parties agree that it is well-established that the owner or keeper of
an animal is liable when that animal injures someone. See, e.g., Ross v. Lowe,
619 N.E.2d 911, 914 (Ind. 1993) (“An owner or keeper who fails to exercise . . .
reasonable care may be liable in negligence for the manner of keeping and
controlling the dog.”). The Browns also point to Baker v. Weather ex rel. Weather,
714 N.E.2d 740 (Ind. Ct. App. 1999), in which we held a landlord may be liable
for the actions of an animal if the landlord owns or controls the property and
has actual knowledge of the animal’s dangerous tendencies. Id. at 741-2.
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Finally, the Browns direct us to Indiana Model Civil Jury Instruction 1955,
entitled, “Domestic Animals – Known to be Dangerous,” which provides:
A [person][entity] who knows or by reasonable care should have
known that a domestic animal [he][she][it] [owns][has charge of]
is vicious or dangerous to [people][other animals][property] must
use reasonable care under the circumstances to prevent the
animal from causing injury or damage.
The comments to the Civil Jury Instruction include reference to Artificial Ice &
Cold Storage Co. v. Martin, 102 Ind. App. 74, 198 N.E. 446 (1935), which we find
instructive here.
[16] In Artificial Cold, Benjamin Earl Martin, who sold and delivered ice, was
contacted by Artificial Cold on August 11, 1931, to “exchange a mule which he
had been working to one of said wagons for a certain horse which another one
of said defendant’s said delivery men had been working.” Id. at 76, 198 N.E. at
447. Later that day, the horse kicked Benjamin and killed him. Benjamin’s
wife, Mary, as administratrix of Benjamin’s estate, sued Artificial Ice, alleging:
That said horse was a vicious and dangerous animal and was
accustomed and in the habit of kicking and biting and was
dangerous to work and handle, all of which said defendant then
and there well knew when it ordered and requested said
exchange and ordered and requested said decedent to use and
work said horse in the place of said mule, but notwithstanding
said vicious, and dangerous disposition and nature of said horse
and defendant’s knowledge thereof, said defendant carelessly and
negligently ordered and requested said decedent to use and work
said horse and carelessly and negligently failed and neglected to
give said decedent any notice or warning of said vicious and
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dangerous disposition and nature of said horse and of his
inclination to kick, all of which said defendant knew or could
and should have known at the time it ordered and requested said
decedent to work and use said horse in hauling and delivering
said ice.
Id. Our court held that the complaint was “predicated upon the alleged
negligent conduct of the appellant knowingly hiring a vicious and ugly mare to
decedent without warning him of such characteristics.” Id. at 77, 198 N.E. at
448. The claim went before a jury, which returned a verdict for Mary, as
administratrix of Benjamin’s estate. Artificial Ice appealed.
[17] Our court relied upon Hosmer v. Carney et al., 228 N.Y. 73, 126 N.E. 650 (1920),
which states in relevant part:
He is not responsible for such injury unless the vicious
propensities of the animal are known to him, or by the exercise of
reasonable care the same could have been ascertained. If such
animal be delivered by him to another, he must inform such
person of the animal’s vicious characteristics, so far as known, or
ascertainable by the exercise of reasonable care. If such
information be given, or the person to whom the animal is
delivered knows, or before injury ascertains, the vicious character
of the animal, the owner is not liable. The liability of the owner
is predicated upon his omission of duty in not imparting the
information, but such omission does not render him liable if the
negligence of the injured party contributed to the injury.
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Id. at 75, 126 N.E. at 651 (internal citations omitted). 5 This standard, now
almost a century old, is still law. Thus, we hold Southside, as the owner
and/or keeper of Grieg, had a duty to inform the Browns of Grieg’s “vicious
characteristics” so far as Southside knew, or to the extent such knowledge was
ascertainable by the exercise of reasonable care.
[18] The parties disagree as to whether Southside knew, or should have known by
exercise of reasonable care, of Grieg’s past aggressions. For example,
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. Further, 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. As we have
determined Southside had a duty to Brown, significant issues of material fact
preclude summary judgment in this action. 6
5
Upon examination of the evidence, our court ultimately overturned the jury’s verdict in favor of the estate
because there existed evidence to suggest Benjamin had “watered the mare [in question] occasionally” and
“she kicked at decedent previous to the exchange in August.” Artificial Ice, 102 Ind.App. at 79, 198 N.E. at
449. Thus, our court held, “the decedent had notice of the vicious character of the mare before the exchange
was made. This would relieve the appellant from the duty of imparting such knowledge to the decedent,
assuming it possessed the same.” Id.6
Southside contends that, should we reverse the trial court’s decision and remand for further proceedings, it
should be permitted to name IACS, MCAC, and CCHS again as non-parties despite the fact that the Browns’
appeal challenges only the trial court’s order as to Southside. However, this is an issue for determination by
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Conclusion
[19] Because Southside had a duty to inform the Browns of Grieg’s past bite history,
and because there are issues of material fact regarding whether Southside
breached that duty or proximately caused Brooks’ injuries, the trial court erred
when it granted summary judgment in favor of Southside. Accordingly, we
reverse and remand for proceedings consistent with this opinion.
[20] Reversed and remanded.
Riley, J., and Altice, J., concur.
the trial court, which has discretion to allow Southside to amend its responsive pleadings to include
nonparties who have been previously dismissed in the same action. See Osterloo v. Wallar ex rel. Wallar, 758
N.E.2d 59, 64-5 (Ind. Ct. App. 2001) (trial court abused its discretion when it denied defendant’s motion to
add previously-dismissed co-defendant as nonparty in defendant’s answer to plaintiff’s complaint).
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