ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
STEVEN P. POLICK KEVIN C. SMITH
TAMMY S. SESTAK BENJAMEN W. MURPHY
Steven P. Polick & Associates, P.C. THOMAS A. CLEMENTS
Highland, Indiana Ruman Clements Tobin & Holub, P.C.
NICHOLAS PLESHA and ) RANDIE PLESHA, ) ) Appellants-Defendants, ) ) vs. ) No. 45A04-9904-CV-168 ) ROBERT G. EDMONDS, JR., b/n/f ) ROBERT G. EDMONDS, SR., and ) DEBBIE EDMONDS; and ROBERT G. ) EDMONDS, SR. and DEBBIE ) EDMONDS, Individually, ) ) Appellees-Plaintiffs. )
softball game at a nearby ball park. There were no markers identifying the boundary between
the Plesha property and the church property, and the neighborhood children regularly
traversed the open field to reach the park.
The Pleshas were hosting a barbeque in their backyard and had taken their dog, Sampson, off his chain so he could play. As Rob and his friend walked by, Sampson began barking and ran towards them. The Pleshas yelled after Sampson to "stop" and told the boys, "Whatever you do, don't move. He won't hurt you if you don't move." Record at 231. Rob's friend ran, but Rob remained still as he had been instructed. Sampson then bit Rob several times as Rob tried to protect himself by pushing the dog away. Randie Plesha grabbed Sampson and pulled him away from Rob. As she was walking Sampson back to the house, the dog broke free and bit Rob one more time.
The Edmonds filed their complaint against the Pleshas on July 16, 1997, alleging that the Pleshas were negligent in failing to keep Sampson restrained. At the bench trial, the trial court took judicial notice of Hammond Ordinance Section 9151-A, which reads:
[A]ll dogs and cats shall be kept under restraint. It is an animal owner's responsibility to insure that animals on and off their real property be restrained. When off the real property, animals shall be on a leash not to exceed six feet in length; or if without [a] leash, [the] animal must be under complete control of the owner and not more than three feet from the owner. Animals on real property must be within a fenced area sufficient in height to prevent the animal to escape; or if on a leash, the animal must be secured on a leash that is at least six feet in length and located where the animal cannot trespass beyond its owner's property line.
for involuntary dismissal, however, is waived by the movant's subsequent presentation of
evidence. Waggoner, 473 N.E.2d at 648. Therefore, the Pleshas waived any claim of error
when the trial court effectively denied their motion for involuntary dismissal and they
proceeded with their case.See footnote
Having deemed the issue waived, we find no error.
restrained on their owners' property by means of a mandatory fence or leash. Clearly, the
Pleshas had neither.
We note that the rules relating to statutory construction are equally applicable to construing ordinances. Hobble by and through Hobble v. Basham, 575 N.E.2d 693, 697 (Ind. Ct. App. 1991). Every word in a statute must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute. Spaulding v. International Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990). A statute should be examined as a whole and a strict, literal, or selective reading of individual words should not be overemphasized. Id.
Were we to give effect to the Pleshas' narrow construction of the Ordinance here, we would abrogate the Ordinance's clear mandate that "[a]nimals on real property must be within a fenced area . . . or . . . on a leash," (emphasis added), as well as the common law doctrine that dog owners owe a duty of reasonable care to prevent injury. See Alfano v. Stutsman, 471 N.E.2d 1143, 1144-45 (Ind. Ct. App. 1984). The Ordinance does not limit a dog owner's duty of reasonable care, but defines it by setting forth the manner in which a dog owner is to exercise that duty. The duty to prevent injury which can reasonably be anticipated extends beyond simply insuring that a dog stays within its owner's property line, as the Pleshas would have it.
Moreover, this court endeavors to give statutory words their plain and ordinary meaning absent a clearly manifested purpose to do otherwise. Rush v. Elkhart County Plan Comm'n, 698 N.E.2d 1211, 1215 (Ind. Ct. App. 1998), trans. denied. The Ordinance does
not state that owners shall "contain" their dogs and cats within their property, but provides
that owners shall "restrain" their dogs and cats. The Pleshas' interpretation ignores the plain
and ordinary meaning of the terms "restraint" and "restrained," which import active control
and prevention of conduct rather than mere containment. See Black's Law Dictionary at
1214 (6th ed. 1991) (confinement or holding back from action); American Heritage
Dictionary at 1438 (3d ed. 1992) (to hold back or keep in check; control). Accordingly,
we decline to adopt the Pleshas' interpretation of the Ordinance and affirm the trial court's
determination that they violated the same, proximately causing Rob's injuries.
The Pleshas maintain in the alternative that even if there was a technical violation of the Ordinance, "Sampson was lawfully on the premises of the Pleshas in a position and place which he had a right to be at the time of the occurrence." Brief of Appellant at 11-12. Specifically, the Pleshas contend that because Rob was trespassing on their property at the time of the attack and they did not willfully or wantonly cause Rob's injuries, they are not liable as a matter of law. We cannot agree.
As a general rule in Indiana, the only duty an owner or occupier of land owes to a trespasser is to refrain from willfully or wantonly injuring a trespasser after discovering his presence; negligence is insufficient. Carroll by Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 615 (Ind. Ct. App. 1997), trans. denied. An exception to the general rule, however, appears in dog bite cases, where this court has consistently applied a negligence standard without regard to whether the victim was an invitee, licensee, or trespasser on the land on which the dog was maintained. See Burgin By and Through Akers v. Tolle, 500 N.E.2d 763,
765-66 (Ind. Ct. App. 1986);
Alfano, 471 N.E.2d at 1144-45; Royer v. Pryor, 427 N.E.2d
1112, 1117 (Ind. Ct. App. 1981); Doe v. Barnett, 145 Ind. App. 542, 550-51, 251 N.E.2d
688, 694 (1969). As we observed in Alfano:
Under our common law all dogs, regardless of breed or size, are presumed to be harmless, domestic animals. This presumption is overcome by evidence of a known or dangerous propensity as evidenced by specific acts of the particular animal. When such is the evidence a duty arises for the owner or keeper to use reasonable care to prevent the dog from biting someone.
When negligence is claimed, in the absence of evidence that the owner
knew or should have known of a vicious tendency, the rule is simply that the
owner of a domestic animal is bound to know the natural propensities of the
particular class of animals to which it belongs. If these propensities are the
kind which might be reasonably expected to cause injury, the owner must use
reasonable care to prevent the injuries from occurring.
Alfano, 471 N.E.2d at 1145 (citations omitted) (emphasis added).
Additionally, in Keane v. Schroeder, 148 Ind. App. 131, 264 N.E.2d 95 (1970), we recognized that property owners may owe a higher level of care to children who come, even trespass, onto their property:
The probable presence of children on property where a dangerous activity is being carried on, imposes a duty of ordinary care on the owner of such property to anticipate their presence by keeping a lookout for them, and such duty applies not only with respect to children under seven years of age, but may apply to older children whose presence the owner has reason to expect . . . If the probable presence of children on the premises raises a duty to them of ordinary care, such duty may be violated before the children arrive on the premises, by leaving things undone which should have been done in anticipation of their coming, but the duty of care arising from the probable presence of children on the premises, is relative rather than absolute.
Id. at 141-42, 264 N.E.2d at 100 (emphasis added). Nevertheless, in Keane, we reaffirmed the rule that the owner of a dog with vicious or dangerous propensities must exercise
reasonable care to guard against such propensities and to prevent injuries which can be
reasonably anticipated from them. Id. at 147, 264 N.E.2d at 104.
In summary, maintaining a dog in Indiana imposes on a dog owner the duty of reasonable care, even when the owner is unaware of the dog's vicious or dangerous propensities. See Alfano, 471 N.E.2d at 1145. Without knowledge of the dog's vicious or dangerous propensities, the owner may become liable for damages the dog causes where the owner is otherwise negligent in the manner of his "keeping and control" of the dog. See Burgin, 500 N.E.2d at 766. Above all, an owner is bound to know a dog's natural propensities and use reasonable care to prevent injuries which might reasonably be expected from those propensities. See Alfano, 471 N.E.2d at 1145. The foregoing duties are imposed on the owner of a dog regardless of a dog bite victim's age or status.
The record here is uncontroverted that Sampson was neither fenced in nor on a leash at the time he charged and bit Rob. The attack occurred in a location where many neighborhood children were known to walk on a regular basis to reach the nearby ball park. Randie Plesha testified that Sampson had a tendency to try and break free from his lease when aggravated, growled at trespassers, and was usually kept on a chain because he is "a hunting dog," and if he smelled something, "he is liable to track it down." Record at 241. This evidence was sufficient to support a conclusion that the Pleshas failed to exercise reasonable care in keeping their dog restrained or in preventing their dog from biting someone, irrespective of Rob's status as a trespasser . Any given method of restraining a dog may or may not be adequate under the particular facts of a particular case; however, what
precautions should have been observed and what foresight should have been exercised are
questions more appropriately reserved for the trier of fact. Hardsaw, 665 N.E.2d at 607. We
find no error.
STATON, J., and RUCKER, J., concur.
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