Attorneys for Appellant
Attorney for Appellee
Kevin C. Tyra Richard Walker
Doris L. Sweetin Anderson, Indiana
Indiana Supreme Court
Appellant (Defendant below),
Appellees (Plaintiff below).
Appeal from the Madison Circuit Court, No. 48C01-0007-CT-516
The Honorable Fredrick R. Spencer, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 48A04-0111-CV-493
September 24, 2003
Tamara Cooks dog bit Kenneth Whitsell-Sherman while Whitsell-Sherman was discharging his duties as
a letter carrier. The liability of owners whose dogs bite mail carriers
and certain other public servants is governed in Indiana by statute. We
hold the effect of this statute is to render dog owners strictly liable
if their dogs bite the described public servants without provocation.
We also hold Indiana Rule of Evidence 413 allows the admission into evidence
of bills for actual charges for past medical treatment but does not authorize
admission of written statements purporting to estimate future medical costs.
Factual and Procedural Background
On the afternoon of July 31, 1998, Kenneth Whitsell-Sherman was delivering mail as
a letter carrier for the United States Postal Service. When he arrived
at the home of Marva and Joseph Hart, the Harts were on the
sidewalk outside their fenced yard and their eight-year-old daughter was several feet away
on the sidewalk, holding Maggie, a 100-pound Rottweiler, on a leash. Maggie
was owned by appellant Tamara Cook, and the Harts were taking care of
her while Cook was out of town. When Whitsell-Sherman finished delivering the
Harts mail and attempted to walk around Mrs. Hart, Maggie broke free and
bit Whitsell-Sherman on the left hand. Before this incident, Maggie had never
demonstrated any aggressive or violent tendencies.
Whitsell-Sherman sued Cook and the Harts. The Harts did not appear and
a default judgment was entered against them on both the complaint and Cooks
cross claim for indemnity. After a bench trial, the trial court found
that Cook was the owner of the dog and the Harts had custody
and control at the time of the incident. The court concluded that
Cook was liable for negligence per se and violation of a statutory duty.
The trial court found it highly likely that Whitsell-Sherman will need significant future
See footnote and ruled that Evidence Rule 413 allowed Whitsell-Sherman to prove these future
costs through four contested items of evidence: letters from a hospital, a surgeon,
and an anesthesiologist estimating the cost of future treatment and a summary of
future prescription costs, compiled by Whitsell-Shermans lawyer. The trial court entered judgment
for Whitsell-Sherman against Cook and the Harts in the amount of $87,000.
Cook appealed and the Harts remained in default.
I. Liability of Owners and Keepers to Public Servants Bitten by Dogs
Indiana Code section 15-5-12-1 provides:
If a dog, without provocation, bites any person who is peaceably conducting himself
in any place where he may be required to go for the purpose
of discharging any duty imposed upon him by the laws of this state
or by the laws or postal regulations of the United States of America,
the owner of such dog may be held liable for any damages suffered
by the person bitten, regardless of the former viciousness of such dog or
the owners knowledge of such viciousness.
On appeal, the Court of Appeals agreed that Cook was the owner of
the dog for purposes of this statute, but reversed the trial courts determination
that the statute rendered the owner liable under the doctrine of negligence per
se. The Court of Appeals reasoned that the statute imposed no duty
upon Cook and did not alter the common law standard of reasonable care
required of dog owners except to eliminate the common law presumption that a
dog is harmless. The court concluded that under general rules of negligence
a public servant who has been bitten by a dog must still show
that the dogs owner failed to act reasonably to prevent the dog from
causing harm. Because the admissibility of evidence of future medical expenses was
likely to arise again upon retrial the Court of Appeals also addressed the
trial courts ruling on Evidence Rule 413, and held that estimates of future
medical charges were admissible under Rule 413. This Court granted transfer.
At the time Maggie bit Whitsell-Sherman, Cook was Maggies owner but not her
custodian. Whether Indiana Code chapter 15-5-12 renders Cook liable under these facts
is a question of law and we review it de novo.
Cook argues initially that the statute does not apply to her in this
situation because at the time of the incident she was not in possession
of the dog. Section 15-5-12-2 provides that owner as the term is
used in 15-5-12-1 includes a possessor, keeper, or harborer of a dog.
Cook reasons that under this definitional section, an owner of a dog is
the person who has control of the dog at the time of the
bite. As in this case, the keeper may not be the person
to whom the dog belongs. The Court of Appeals held that the
statute applies to Cook by its terms. The statute explicitly provides that
owner means the owner of a dog. Ind. Code § 15-5-12-2 (1998).
The court reasoned that the fact that the statute goes on to
say that owner also includes the possessor, keeper, or harborer of a dog
does not restrict the term owner to those in immediate custody. Rather,
it expands the definition of owner to include others in addition to the
dogs owner. We agree that Cooks liability is governed by this statute.
By providing that owner includes custodians, it does not substitute them for
the owner if, like Cook, the owner is absent from the scene of
the bite. This also seems fair because the owner is usually better
able to know the dogs temperament than one to whom temporary custody is
extended. The owner is ordinarily best positioned to give whatever special instructions
are necessary to control the dog.
Cook argues that even if she is an owner, the trial court misapplied
Section 15-5-12-1 when it held her negligent per se by reason of the
statute. The common law presumes that all dogs, regardless of breed or
size, are harmless. Poznanski v. Horvath, 788 N.E.2d 1255, 1257 (Ind. 2003);
Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993). This presumption can
be overcome by evidence of a known vicious or dangerous propensity of the
particular dog. Ross, 619 N.E.2d at 914. The owner or keeper
of a dog who knows of any vicious propensity is required to use
reasonable care in those circumstances to prevent the animal from causing injury.
Id. Furthermore, the owner of a dog is expected to use reasonable
care to prevent injury that might result from the natural propensities of dogs.
Id. Thus, whether the owner or keeper of the animal is
aware of any vicious propensity, the legal description of the duty owed is
the same: that of reasonable care under the circumstances. Id. Cook
argues that Indiana Code section 15-5-12-1 does nothing to alter this traditional framework
other than to remove the common law presumption of harmlessness if a dog
injures a public servant. Accordingly, she argues, the public servant injured by
a dog still bears the burden of showing that the owner of the
dog failed to exercise reasonable care to prevent the dog from causing injury.
We agree with Cooks view of the common law of dog bites, but
we think it clear that Section 15-5-12-1 was intended to alter that common
law framework if the victim is a letter carrier. A
in derogation of the common law is presumed to be enacted with awareness
of the common law.
Bartrom v. Adjustment Bureau, Inc., 618 N.E.2d 1,
10 (Ind. 1993). Here, the legislature clearly intended to change the common
law and did so by explicitly removing the common law presumption that a
dog is harmless unless it acts otherwise. Some states have chosen to
impose strict liability for all dog bites. As the Restatement notes, [s]tatutes
frequently abolish the necessity of scienter and impose strict liability for all harm
caused to human beings and livestock by dogs. Restatement (Second) of Torts §
509 cmt. f (1977). See, e.g., Nicholes v. Lorenz, 211 N.W.2d 550,
551 (Mich. Ct. App. 1973) (a statute that provides the owner of any
dogs which shall . . . bite any person . . . shall
be liable for such damages as may be suffered by the person bitten,
regardless of the former viciousness of such dog or the owners knowledge of
such viciousness places absolute liability on the owner of the dog).
The Indiana statute imposes a less sweeping revision of common law. It
protects only public servants, and does not expressly set a standard of conduct
or impose liability for a bite. The trial court concluded that the
effect of the statute was to render the owner negligent per se.
Negligence per se is ordinarily found where the actor has violated a duty
imposed by law. Elder v. Fisher, 247 Ind. 598, 602, 217 N.E.
2d 847, 850 (1966). For example, violation of a statute making it
a misdemeanor to permit cattle to wander onto a highway is negligence per
se. Corey v. Smith, 233 Ind. 452, 455, 120 N.E.2d 410, 412
(1954). Just as the Indiana statute does not explicitly create liability, it
also does not expressly establish a standard of conduct. It thus does
not suggest negligence per se under standard doctrine.
We nevertheless conclude the statute has the effect of rendering the owner liable
for bites of public servants. Persons engaged in dangerous activities may be
strictly liable to others who are injured. Specifically, owners of wild animals
have been viewed as negligent per se for failure to control the animal.
See Bostock-Ferari Amusement Co. v. Brocksmith, 34 Ind. App. 566, 568, 73
N.E. 281, 282 (1905). More recently, liability for injuries inflicted by wild
animals has been viewed as strict liability doctrine. Irvine v. Rare Feline
Breeding Ctr., 685 N.E.2d 120, 123 (Ind. Ct. App. 1997) (injuries by a
tiger). Thus, possession of a wild animal is, like blasting, an unreasonably
dangerous activity subjecting the actor to strict liability. The common law treated
dogs, unlike tigers, as presumptively not dangerous and not subject to that liability.
Otherwise stated, although a dog with a previously spotless record may present
some risk of a bite, canine ownership was not an abnormally dangerous activity
at common law. However, the Indiana statute puts dog owners on the
same legal footing as owners of less domestic animals as far as public
servants are concerned. The result is strict liability for failure to prevent
injuries that are the result of the perceived dangerous propensity. In this
case, the dangerous propensity is a dog bite. Keeping a tiger in
the backyard is a classic example of an abnormally dangerous activity subjecting the
keeper to strict liability. See Dan B. Dobbs, The Law of Torts
§ 345, at 947-48 (2001). The Indiana statute gives the postal delivery
worker the same protection from dog bites that the common law gives all
citizens from tiger maulings. In this case, the statute reflects a policy
choice that the dogs owner and keeper should bear the loss rather than
the injured public employee. Accordingly, Cook is subject to strict liability for
Maggies biting Whitsell-Sherman.
Reading the statute to impose strict liability is similar but not identical to
the negligence per se theory followed by the trial court. Under negligence
per se, the law accepts the legislative judgment that acts in violation of
the statute constitute unreasonable conduct. A person whose acts are negligent per
se can still invoke the excuses available to any negligent actor such as
emergency response or lack of capacity. See generally Restatement (Second) of Torts
§ 288A; Gore v. Peoples Sav. Bank, 665 A.2d 1341, 1345 n.10 (Conn.
1995). Strict liability, on the other hand, assumes no negligence of the
actor, but chooses to impose liability anyway. David C. Sobelsohn, Comparing Fault,
60 Ind. L.J. 413, 427-28 (1985).
By stating that an owner may be held liable . . . regardless
of the former viciousness of such dog or the owners knowledge of such
viciousness, the statute directs that a court may hold a person liable whether
or not the dog had a history of violence. Cook points to
the statutes use of the word may, and argues that the statute permits
but does not require liability for the dogs first bite. She reasons
that a successful plaintiff must still establish lack of reasonable care. We
think may simply emphasizes the change in the liability scheme from the common
law rule that every dog gets one free bite. Because every canine
is a dangerous instrumentality as far as postal employees are concerned, the rules
applicable to wild animals apply to impose strict liability. The net result
of eliminating the presumption of canine harmlessness is that the statute imposes strict
liability on dog owners for bites of letter carriers and other public servants
in the course of their duties. The result is that the statutes
removal of the presumption in most cases leaves the bitten public servant with
nothing more to prove to establish liability than who the owner is and
that the dog sunk his teeth into the public servant without provocation.
Failure to control the dog who bites under these circumstances renders the owner
liable without more. II. Indiana Rule of Evidence 413
Cook argues that the trial court erred in admitting evidence of the cost
of future medical treatment that Whitsell-Sherman could face as a result of his
injury. This issue turns on the construction of a rule of evidence,
not its application to any particular set of facts. As such, it
is reviewed de novo. Stahl v. State, 686 N.E.2d 89, 91 (Ind.
At trial, Whitsell-Sherman introduced letters from health care providers estimating future medical expenses.
These assumed he would likely need to undergo one of two types
of hand surgery. Specifically, these estimates were contained in a letter from
Community Hospital of Anderson estimating future surgical costs for two types of hand
surgery at $4,500 for left-hand fusion and $8,000 for joint replacement, a letter
from his surgeon estimating $2,307 in surgical fees, a letter from Anesthesia Services,
Ltd. estimating costs for anesthetic services for the different surgeries at between $350
and $550, and a summary, compiled by his attorney, estimating future prescription drug
costs over Whitsell-Shermans life expectancy. Cook objected to this evidence as inadmissible
hearsay. The trial court ruled that the evidence was admissible pursuant to
Indiana Rule of Evidence 413. That Rule provides:
Statements of charges for medical, hospital, or other health care expenses for diagnosis
or treatment occasioned by an injury are admissible into evidence. Such statements
shall constitute prima facie evidence that the charges are reasonable.
We conclude that Rule 413 allows the admission of bills for actual past
medical charges, but does not permit future estimates of costs.
First, the text of Rule 413 does not support the result reached by
the trial court and the Court of Appeals. The rule does not use
the terms past or future to qualify the types of statements to which
it applies. But it is limited to statements. We think
the rule uses statements not to mean assertions of fact, but rather as
equivalent to bills or charges. One definition of statement is a summary
of a financial account showing the balance due. Merriam-Websters Collegiate Dictionary 1148
(10th ed. 1993). The rules reference to statements of charges is in
this sense. Moreover, the rule uses the past tense (occasioned) in describing
the charges for which a statement may be admitted under Rule 413.
This by its terms allows only statements of charges for medical treatment that
have already been incurred.
The purpose of the Rule also limits its application to statements of past
medical charges. In order to recover an award of damages for medical
expenses, the party seeking to recover these damages must prove that the expenses
were both reasonable and necessary. Smith v. Syds Inc., 598 N.E.2d 1065,
1066 (Ind. 1992). This was traditionally proven by expert testimony. The
purpose of Rule 413 is to provide a simpler method of proving amount
of medical expenses when there is no substantial issue that they are reasonable
and were caused by the tort. If there is a dispute, of
course the party opposing them may offer evidence to the contrary, including expert
opinion. By permitting medical bills to serve as prima facie proof that
the expenses are reasonable, the rule eliminates the need for testimony on that
often uncontested issue. Finally, the fact that a statement was submitted is
at least some evidence that the charge is normal for the treatment involved,
and it was necessary to be performed. In short, none of the
reasons for Rule 413 apply to estimates of future expenses.
Rule 413 establishes the relevance of statements of medical charges. It provides
that these statements can be introduced and constitute prima facie evidence that the
charges are reasonable. Relevance is one issue. Hearsay and opinion issues
remain. The hearsay rules generally prohibit the introduction of evidence of out-of-court
statements to prove the truth of the matters asserted in those statements. These
rules are meant to prevent the introduction of unreliable evidence that cannot be
tested through cross-examination. Medical bills already charged can usually be admitted over
any hearsay objection either through testimony of the supplier as business records under
Indiana Rule of Evidence 803(6) or through testimony of the patient to refresh
memory under Rule 803(5). See Montgomery Ward & Co. v. Gregg, 554
N.E.2d 1145, 1161 (Ind. Ct. App. 1990) (Gregg demonstrated knowledge of particular charges
. . . . Consequently, we find no reversible error in permitting Gregg
to refer to the compilation of expenses to obtain the total cost of
his medical care). Estimates of future medical expenses are not records of
an event that has occurred, as required by Rule 803(6) of a business
record. Nor do they help a refresh a persons recollection. Indeed
they relate to an event that has not yet occurred and may never
Even if hearsay objections are surmountable, estimates of future medical charges are not
as reliable as medical bills already incurred because the amount of future medical
charges is usually debatable as to both the probability of the need for
the treatment and the method of estimating its future cost. The letters
at issue here state explicitly that they are meant only as estimates.
As such, they constitute opinion evidence. This is precisely the sort of
evidence that would benefit from cross-examination. Hearsay rules prevent admission of the
opinion in documentary form not subject to cross-examination, and the rules governing opinion
testimony require that the proponent establish the competency of the source to express
the opinion. Rule 413 was not intended to, and does not
do away with these requirements under the rules found in Articles VII and
VIII of the Rules of Evidence. Accordingly, Rule 413 does not allow
admissibility of estimates of future charges as prima facie evidence without supporting testimony
admissible under the doctrines governing hearsay and opinion testimony.
For these reasons, we hold that Indiana Rule of Evidence 413 does not
permit the introduction into evidence of written estimates of future medical costs.
Rather, these costs must be established by admissible testimony from competent witnesses.
We hold that Indiana Code section 15-5-12-1 imposes strict liability on dog owners
whose dogs bite public servants without provocation. We hold also that Rule
413 of the Indiana Rules of Evidence does not support the introduction into
evidence of written estimates of future medical costs. Cook argues that
the amount of damages assessed against her was excessive. Because there must
be a new trial of damages, we need not address this issue.
This case is remanded for retrial on the issue of damages.
Shepard, C.J., and Dickson, and Sullivan, JJ. concur.
Rucker, J., concurs in part and dissents in part with separate opinion.
Rucker, Justice, concurring in part and dissenting in part.
I disagree with the majoritys conclusion that Indiana Code section 15-5-12-1 imposes strict
liability on the owners of dogs that bite letter carriers and other public
servants. Although the General Assembly abrogated the common law in this area,
there is nothing in the statute to suggest that it did so by
making dog owners strictly liable. Professor Prosser discussed the rationale for the
imposition of strict liability against owners for injuries caused by dangerous animals.
He explained that strict liability is appropriately placed:
[U]pon those who, even with proper care, expose the community to the risk
of a very dangerous thing. . . . The kind of dangerous
animal that will subject the keeper to strict liability . . . must
pose some kind of an abnormal risk to the particular community where the
animal is kept; hence, the keeper is engaged in an activity that subjects
those in the vicinity, including those who come onto his property, to an
abnormal risk. It is the exposing of others to an abnormal risk
that is regarded as justifying strict liability. . . . Thus, strict liability
has been imposed on keepers of lions and tigers, bears, elephants, wolves, monkeys,
and other animals. No member of such a species, however domesticated, can
ever be regarded as safe, and liability does not rest upon any experience
with the particular animal.
Prosser and Keeton on the Law of Torts § 76, at 541-42 (5th
ed. 1984) (footnotes omitted). The underlying premise is that the animal itself
is inherently dangerous and thus safety lies only in keeping the animal secure.
See, e.g., Irvine v. Rare Feline Breeding Ctr., Inc., 685 N.E.2d 120,
125 (Ind. Ct. App. 1997) (discussing the imposition of strict liability on owners
of wild animals), trans. denied.
There is nothing inherently dangerous about a dog. Indeed, as the majority
correctly points out, under our common law, all dogs regardless of breed or
size, are presumed to be harmless domestic animals. Poznanski v. Horvath, 788
N.E.2d 1255, 1258 (Ind. 2003); Ross v. Lowe, 619 N.E.2d 911, 914 (Ind.
1993). Ordinarily this presumption is overcome by evidence of a known or
dangerous propensity as shown by the specific acts of the particular animal.
Poznanski, 788 N.E.2d at 1258. However, even where the owner of a
dog knows of the animals dangerous propensity [the] rules of liability are based
upon negligence and not strict liability. Id. at 1259 (quoting Alfano v.
Stutsman, 471 N.E.2d 1143, 1144 (Ind. Ct. App. 1984)).
In this case the majority reasons the statutes language that an owner may
be held liable . . . regardless of the former viciousness of such
dog or the owners knowledge of such viciousness, has the net result of
imposing strict liability on dog owners when their dogs bite letter carriers and
other public servants in the course of their duties. Slip op. at
8-9 (emphasis added). In my view this is an overly expansive reading
of the statute. Had the Legislature intended to impose strict liability, it
would have done so by dictating that an owner shall be held liable
. . . etc. Absent such language, I agree with my colleagues
on the Court of Appeals that the statute removes the common law presumption
that a dog is harmless in situations where an unprovoked dog bites a
letter carrier or other public servant. In essence, the statute simply relieves
the plaintiff of the burden of establishing a dog owners knowledge of the
dogs dangerous propensities. The plaintiff still has the burden of establishing that
the dog owner failed to exercise reasonable care to prevent the dog from
causing injury. On this point I therefore dissent. I concur in
the remainder of the majority opinion.
The trial court made these findings by accepting verbatim Whitsell-Shermans proposed findings
of fact. This practice weakens our confidence as an appellate court that
the findings are the result of considered judgment by the trial court.
Prowell v. State, 741 N.E.2d 704, 708-09 (Ind. 2001). Here, the adoption
of the proposed findings was not by an entry that recited the findings.
Rather, it was by a one-line order reciting in relevant part, Findings
of fact and conclusions of law approved as per order. This practice leaves
us with an even lower level of confidence that all findings reflect the
independent evaluation by the trial court.