ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
DANIEL H. PFEIFER LYNN M. BUTCHER
JON A. CRISS South Bend, Indiana
Sweeney, Pfeifer, Morgan & Stesiak
South Bend, Indiana DON G. BLACKMOND
South Bend, Indiana
SUPREME COURT OF INDIANA
ALYSSA POZNANSKI, a Minor, by her )
Parent and Next Friend, Heather Poznanski )
and HEATHER POZNANSKI, individually, ) Supreme Court Cause Number
Appellants (Plaintiffs ), )
) Court of Appeals Cause Number
GEORGE HORVATH, ) 71A03-0101-CV-34
Appellee (Defendant ). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable R.W. Chamblee, Jr., Judge
Cause No. 71D04-9811-CT-428
May 30, 2003
The question we address in this opinion is whether the very act of
an unprovoked biting by a dog that in the past displayed no vicious
tendencies is sufficient by itself for a jury to infer that the animals
owner knew, or should have known, of the dogs vicious tendencies. We
grant transfer to hold that it is not.
Facts and Procedural History
In this summary judgment action the following facts are not in dispute.
George Horvath lives in South Bend and owned a mixed-breed sheepdog named Hey.
The dog had never bitten anyone and was well behaved. No
one had ever complained about Hey, and he did not usually wander out
of Horvaths yard. On July 23, 1997, Horvath allowed Hey to remain
outside unattended. The dog was neither on a leash nor confined by
a fence. When Alyssa Poznanski and her mother walked by Horvaths home,
Hey bit Alyssa without provocation. As a result Alyssa suffered a cut
to her face requiring stitches. Among other things, a South Bend city
ordinance provides in pertinent part [e]very owner and/or his agent of an animal
within the City shall see that his or her animal . . .
is properly restrained and not at large. Appellants App. at 91.
The ordinance defines at large as any animal that is not under restraint.
Id. at 92.
In her individual capacity and on behalf of Alyssa as next friend, Alyssas
mother (hereafter the Poznanskis) sued Horvath for personal injuries and medical expenses.
In response, Horvath filed a motion for summary judgment. Finding there was
no genuine issue of material fact as to whether Horvath knew or should
have known of any vicious tendencies of the dog, the trial court granted
the motion. The Poznanskis appealed. On review, the Court of Appeals
reversed and remanded, finding genuine issues of material fact remained regarding whether Horvath:
(1) knew or should have known of the dogs vicious propensities; (2)
used reasonable care in keeping the dog restrained; and (3) could be held
liable under the local ordinance requiring proper restraint of animals. Horvath sought
transfer, which this Court previously granted. Poznanski v. Horvath, 761 N.E.2d 423
Standard of Review
Our standard of review is the same as that used in the trial
court: summary judgment is appropriate only where the evidence shows that there
is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Ind. Trial Rule 56(C); Tom-Wat,
Inc. v. Fink, 741 N.E.2d 343, 346 (Ind. 2001). A genuine issue
of material fact exists where facts concerning an issue that would dispose of
the litigation are in dispute or where the facts are capable of supporting
conflicting inferences. Woodward Ins., Inc. v. White, 437 N.E.2d 59, 62 (Ind.
1982). Any doubt as to a fact or an inference to be
drawn is resolved in favor of the non-moving party. Bader v. Johnson,
732 N.E.2d 1212, 1216 (Ind. 2000). We must carefully review a decision
on a summary judgment motion to ensure that a party was not improperly
denied its day in court. Tom-Wat, 741 N.E.2d at 346.
Relying on Layman v. Atwood, 175 Ind. App. 176, 370 N.E.2d 933 (1977),
the Court of Appeals in this case concluded that Horvath could not be
absolved of liability simply because his dog had never before bitten anyone.
According to the court, the very fact that Hey bit Alyssa without provocation
is evidence from which a reasonable inference can be made that Hey had
vicious tendencies. Further, it may be inferred that if the dog had
vicious tendencies based on this one incident, then similar to Layman, a question
of fact exists as to whether Horvath knew or, at the least, should
have known of these tendencies. Poznanski v. Horvath, 749 N.E.2d 1283, 1286
(Ind. Ct. App. 2001).
In Layman, a father acting in his individual capacity and as next friend,
sued Larry and Sherrod Atwood when their Saint Bernard bit the fathers eight-year-old
daughter. The Atwoods moved for summary judgment that was supported by affidavit.
Among other things, the affidavit provided that the dog had always been
an affectionate companion to the Atwood children and that prior to this incident
had never bitten or harmed anyone in any way. Layman, 370 N.E.2d
at 934. The trial court granted the motion. On review the
Court of Appeals reversed. Noting that the dog-biting incident was unprovoked, the
A jury could reasonably infer that the very act of unprovoked biting by
the Atwoods dog was evidence of that animals vicious tendencies. If an
animal does, indeed, have vicious tendencies a jury could reasonably infer that the
animals owner knew or, at least, should have known of those vicious tendencies.
Id. at 935.
We first observe that the very act of unprovoked biting by a dog
does not necessarily mean the dog is dangerous or vicious. Under our
common law, all dogs, regardless of breed or size, are presumed to be
harmless domestic animals. Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993).
This presumption is overcome by evidence of a known or dangerous propensity
as shown by specific acts of the particular animal. Id. A
dangerous propensity is a tendency of the animal to do any act that
might endanger the safety of persons or property in a given situation.
Id. Thus, depending on the facts of a particular case, a dogs
unprovoked biting may or may not be evidence of the dogs vicious tendencies.
For example, although technically a biting, a playful nibble on the hand
is one thing, while a teeth-baring clamp on the arm is quite another.
In any event, in this case the record shows that Hey either
bit or nipped Alyssa in the face. Appellants App. at 59.
Regardless of the characterization, the incident resulted in Alyssa receiving hospital and medical
attention including several stitches to her face. Under these circumstances a jury
could reasonably conclude that Hey at least exhibited dangerous, if not vicious, tendencies.
The question remains whether in light of a dog exhibiting dangerous or vicious
tendencies for the first time, may a jury reasonably infer that the dogs
owner knew, or at least should have known of those tendencies. If
so, then this inference alone is enough to create a genuine issue of
material fact to defeat a dog owners claim that he or she was
unaware of such tendencies. We conclude however that a jury may not
make such an inference.
When wild animals are kept as pets, an owner is liable for injuries
caused by the animal. Irvine v. Rare Feline Breeding Ctr., Inc., 685
N.E.2d 120, 125 (Ind. Ct. App. 1997), trans. denied. This is so
even if the owner had no prior knowledge of the animals propensity to
cause harm, and even if the owner has exercised the utmost care in
preventing harm. In essence, strict liability is imposed on owners of wild
animals. Id. Owners of domestic animals may also be held liable
for harm caused by their pet but only if the owner knows or
has reason to know that the animal has dangerous propensities. Klenberg v.
Russell, 125 Ind. 531, 25 N.E. 596, 597 (1890) ([T]he owners of creatures
which, as a species, are harmless and domesticated, and are kept for convenience
or use, such as dogs . . . are not liable for injuries
willfully committed by them unless he is proved to have had notice of
the inclination of the particular animals complained of to commit such injuries.); see
also Artificial Ice & Cold Storage Co. v. Martin, 102 Ind. App. 74,
198 N.E. 446, 448 (1935). As with wild animals this liability also
attaches regardless of the amount of care exercised by the owner. However,
unlike with wild animals, when the owner of a dog has knowledge of
its dangerous propensities, [the] rules of liability are based upon negligence and not
strict liability. Alfano v. Stutsman, 471 N.E.2d 1143, 1144 (Ind. Ct. App.
1984) (quoting Doe v. Barnett, 145 Ind. App. 542, 251 N.E.2d 688, 694
(1969)). Because it is an action sounding in negligence, the defenses of
contributory negligence and assumption of risk are available to limit this liability.
Borton v. Lavenduskey, 486 N.E.2d 639, 642 (Ind. Ct. App. 1985), trans. denied.
In certain instances, a cause of action in negligence can survive without the
owners actual knowledge of the animals dangerous propensities. Indeed, such knowledge may
even be constructive. Doe, 251 N.E.2d at 692. Nonetheless, when an
owner does not know of his animals dangerous propensities, the rule is not
that the jury may infer or impute such knowledge. Rather, the rule
is that the owner is bound to know the natural tendencies of the
particular class of animals to which [the] dog belongs. Ross, 605 N.E.2d
at 788 (emphasis added). If the propensities of the class to which
the dog belongs are the kind which one might reasonably expect would cause
injury, then the owner must use reasonable care to prevent injuries from occurring.
Thus, where there is no evidence of an owners actual knowledge that his
or her dog has dangerous propensities, the owner may nonetheless be held liable
provided there is evidence that the particular breed to which the dog belongs
has dangerous propensities. And this is so even where the owners dog
has never before attacked or bitten anyone. See, e.g., Holt v. Myers,
47 Ind. App. 118, 93 N.E. 1002, 1002-03 (1911) (observing that the ferocious
nature of a bulldog was sufficient to provide the owner with constructive notice
of the dogs dangerous propensities). In essence, a jury may not infer
that an owner knew or should have known of a dogs dangerous or
vicious propensities from the fact of a first time, unprovoked biting. Rather
in such an instance, a jury may infer that the owner knew or
should have known of the dogs dangerous or vicious propensities only where evidence
shows that the particular breed to which the owners dog belongs is known
to exhibit such tendencies.
In the case before us, there was no evidence presented that Horvath had
any knowledge that Hey exhibited dangerous or vicious propensities. The record shows
Hey was very well trained, behaved well, responded when Horvath called to him
or told him to stay. Hey did not wander out of Horvaths
yard or wander around the neighborhood. The record also shows that Horvath
never received any complaints about Heys conduct or behavior. And even though
Horvaths home was near an elementary school, Hey did not get excited or
nervous when he heard children playing, screaming or making loud noises. Nor
was there any evidence presented to the trial court that the breed to
which Hey belonged, a mixed-breed sheep dog, exhibited dangerous or vicious propensities.
Accordingly, a jury could not infer that Horvath knew that his dog was
dangerous or vicious.
On the question of whether there is any genuine issue of material fact
that Horvath knew or should have known of Heys vicious tendencies, we affirm
the judgment of the trial court. The Court of Appeals opinion on
this point is thus vacated. We summarily affirm the Court of Appeals
resolution of the Poznanskis claim that Horvath could be held liable under the
local ordinance requiring proper restraint of animals.
We affirm the judgment of the trial court in part. This cause
is remanded for further proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ ., concur.