ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
KEVIN C. TYRA RICHARD WALKER
DORIS L. SWEETIN Anderson, Indiana
Tyra & Collesano, P.C.
COURT OF APPEALS OF INDIANA
TAMARA COOK, )
vs. ) No. 48A04-0111-CV-493
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick R. Spencer, Judge
Cause No. 48C01-0007-CT-0516
July 24, 2002
OPINION - FOR PUBLICATION
Tamara Cook challenges the trial courts determination that she is liable for injuries
that occurred when her dog bit Kenneth Whitsell-Sherman. Cook also argues that
the trial court erred in admitting evidence of potential future medical treatment for
Whitsell-Shermans injuries. Because we find that the trial court erred in concluding
that Cook was negligent per se for Whitsell-Shermans injuries, we reverse and remand.
Facts and Procedural History
On July 31, 1998, 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 (collectively, the Harts). The Harts residence had a fully
fenced-in yard with a mailbox on the outside of the fence, which allowed
for a postal carrier to deliver the mail without having to enter the
yard. On that day, the Harts were taking care of Cooks eight-year
old Rottweiler dog while Cook was out of town.
When Whitsell-Sherman arrived at the residence, the Harts were both outside the
fence on the sidewalk talking, and their daughter was also outside the fenced-in
yard holding the Rottweiler by a leash. Whitsell-Sherman delivered the Harts mail
and started to step around Marva. At that point, the Rottweiler lunged
forward and bit Whitsell-Sherman on the hand. The Harts daughter was no
longer holding onto the leash. After a short time, the Rottweiler released
Whitsell-Shermans left hand, and the Harts provided Whitsell-Sherman with a towel to control
bleeding until emergency assistance arrived and took him to the hospital. As
a result of the dog bite, Whitsell-Sherman sustained injury to his left hand
causing him to incur $3,491.71 in medical bills and $120 in lost wages.
Prior to the incident, the Rottweiler had not demonstrated any aggressive or inappropriate
behavior. Cook owned the Rottweiler beginning in November 1990 when the dog
was an eight-week-old puppy. When Cook would go on vacation she would
board the Rottweiler at a boarding kennel where Marva worked. In 1994,
Cook moved to a different house where she could no longer have the
Rottweiler, and the Harts agreed to take the dog. In 1997, Cook
took the Rottweiler back, but the Harts continued to take care of the
dog at their home whenever Cook had to leave town.
On July 28, 2000, Whitsell-Sherman filed suit against Cook and the Harts for
damages from the bite. On October 23, 2000, Cook filed her Answer
to Plaintiffs Complaint and Cross-claim in which she denied liability, asserted that Whitsell-Shermans
injuries were caused by his own fault, and claimed that she was entitled
to indemnification from the Harts if a judgment was entered against her.
After the Harts failed to appear in the case and defend themselves, Cook
filed a Motion for Default Judgment against them on August 31, 2001.
The trial court granted Cooks Motion for Default on September 5, 2001.
On September 21, 2001, a bench trial was held on this action.
During the bench trial Whitsell-Sherman introduced evidence of his lost wages, current medical
expenses, possible future medical expenses, and pain and suffering. During the course
of the trial, the trial court also granted Whitsell-Shermans oral request for a
default judgment against the Harts. At the conclusion of the bench trial,
the court took the matter under advisement. On October 11, 2001, the
trial court issued its Findings of Fact and Conclusions of Law in which
1. That pursuant to I.C. 15-5-12-1, Plaintiff need not meet the common law
burden of proving that Cook had prior knowledge of the viciousness of her
2. That a clear and unambiguous reading of I.C. 15-5-12-2 requires a determination that
Cook is the owner of the dog that attacked Plaintiff.
3. That Cook is liable for the injuries suffered and damages incurred by
the Plaintiff, Kenneth Whitsell-Sherman, under the doctrine of negligence per se and pursuant
to the provisions of I.C. 15-5-12-1.
4. That Plaintiff, Kenneth Whitsell-Shermans estimated future medical expenses are admissible pursuant
to IRE 413.
Appellees App. p. 3-4. The trial court then entered judgment against the
defendants, Tamara Cook, Joseph Hart and Mara [sic] Hart, jointly and severally, in
the sum of eighty seven thousand dollars ($87,000.00) plus costs. Appellants App.
p. 9. This appeal ensued.
Discussion and Decision
Cook challenges the trial courts determination that she was negligently liable for Whitsell-Shermans
damages. More specifically, Cook argues that the trial court erred in applying
Indiana Code § 15-5-12-1 when it found Cook negligent per se as a
non-custodial owner of a dog that attacked a United States Postal Service employee.
Cook also argues that the trial court erred in admitting evidence of
potential future medical treatment for Whitsell-Shermans injuries. We address each argument in
I. Indiana Code § 15-5-12-1
Because Whitsell-Sherman is an employee of the United States Postal Service and was
carrying out his duties when he was attacked by Cooks dog, this case
is governed by Indiana Code § 15-5-12-1. Indiana Code § 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.
Cook brings two arguments relating to this statute. Cook argues that the
statute should not apply to her because she was a non-custodial owner of
the dog at the time of the attack. Cook also asserts that
the trial court erred in finding that she violated Indiana Code § 15-5-12-1
and should therefore be liable under the doctrine of negligence per se.
A. Non-custodial Owner
Cooks first argument is that under the relevant statute in this case, she
should not be found liable for damages resulting from the dog attack because
she was a non-custodial owner of the dog at the time of the
attack. In establishing the applicability of Indiana Code chapter 15-5-12, Indiana Code
§ 15-5-12-2 provides: As used in this chapter, owner means the owner of
a dog. The term includes a possessor, keeper, or harborer of a
dog. Cook argues that because Indiana Code § 15-5-12-2 includes a possessor,
keeper, or harborer under the term of owner, the statute should be read
to apply only to individuals who are in control of the dog at
the time of an attack, which would exclude non-custodial owners. Therefore, Cook
asserts that the statute would not apply to her. We disagree.
When interpreting the meaning of a statute, this court is guided by well-established
rules of statutory construction. Bringle v. State, 745 N.E.2d 821, 826 (Ind.
Ct. App. 2001), trans. denied. A statute should be construed to ascertain
and give effect to the expressed intention of the legislature by giving the
words and phrases their common and ordinary meaning. Id. While we
agree that the definition of owner under Indiana Code § 15-5-12-2 includes a
greater class of individuals than would fall under the common and ordinary meaning
of the word, this does not mean that the word owner does not
also receive its common meaning under the statute. The Indiana General Assembly
did not qualify the definition of owner; in fact the General Assembly gave
owner a more expansive definition then it would typically receive. Therefore, on
the face of the statute we are unable to see why a non-custodial
owner should not be considered an owner.
In support of her argument, Cook also directs us to Vetor by Weesner
v. Vetor, 634 N.E.2d 513 (Ind. Ct. App. 1994), a general dog bite
case not governed by Indiana Code chapter 15-5-12, in which this Court found
that the defendant could be found liable if he was found to be
the dogs keeper even though his son owned the dog. 634 N.E.2d
at 515-16 n.3. We do not see how this case supports Cooks
argument. While the court in Vetor determined that a keeper could be
found liable for the damages resulting from a dog that he did not
own, it did not exclude the possibility that the dogs owner could also
be found liable. Id. The decision in Vetor simply holds that
even under the common law, liability for a dog attack will include a
class of individuals greater than the actual owner of the dog. Id.
Cook admits that she is the owner of the Rottweiler that attacked Whitsell-Sherman.
The fact that the dog was not in her custody at the
time of the attack makes no difference with regard to Indiana Code chapter
15-5-12. Indiana Code §15-5-12-2 provides that the chapter applies to a dogs
possessor, keeper, or harborer as well as the dogs actual owner. Therefore,
we find that Indiana Code chapter 15-5-12 applies to Cook because she was
the owner of the dog that attacked a United States postal worker while
he was peaceably discharging his duties.
B. Negligence Per Se
Cook also argues that the trial court erred in determining that she was
liable for the injuries suffered and damages incurred by the Plaintiff, Kenneth Whitsell-Sherman,
under the doctrine of negligence per se and pursuant to the provisions of
I.C. 15-5-12-1. Appellees App. p. 4. In particular, Cook asserts that
the trial court erred in applying the doctrine of negligence per se instead
of deciding the case under the general standards of negligence. We agree.
It is well-established that the keeper of an animal has a duty
to provide for restraining and confinement of that animal. Ross v. Lowe,
619 N.E.2d 911, 914 (Ind. 1993). Under our common law, all dogs,
regardless of breed or size, are presumed to be harmless, domestic animals.
Id. However, the presumption that a dog is a harmless, domestic animal
is overcome by evidence of a known or dangerous propensity as shown by
specific acts of the particular animal. Id.; see also Hardshaw v. Courtney,
665 N.E.2d 603, 607 (Ind. Ct. App. 1996), rehg denied. A
dangerous propensity is a tendency of the animal to do any act which
might endanger the safety of persons or property in a given situation.
Id. Even when the owner or keeper 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, 552, 251 N.E.2d 688,
694 (1969)). When the owner or keeper of the animal is aware
of any vicious propensity, he is obligated to use reasonable care to prevent
the animal from causing injury or damage. Ross, 619 N.E.2d at 914.
Reasonable care requires that the care employed and the precautions used be
commensurate with the danger involved under the circumstances of a particular case.
Id. The safeguards to be used, the precautions to be observed and
the foresight to be exercised differ in each case, and are usually matters
to be resolved by the trier of fact. Id.
Typically, the finder of fact must assess the sufficiency of the dog
owners safeguards when determining whether the owner was negligent in a dog attack.
However, when dog owners fail to restrain or contain their dogs in
accordance with a statute or ordinance, the owners can be found negligent per
se. See Plesha v. Edmonds ex rel. Edmonds, 717 N.E.2d 981
(Ind. Ct. App. 1999) (finding that dog owners were negligent per se for
failing to restrain their dog in violation of a city ordinance), rehg denied,
trans. denied. The unexcused or unjustified violation of a duty proscribed by
a statute or ordinance constitutes negligence per se if the statute or ordinance
is intended to protect the class of persons in which the plaintiff is
included and to protect against the risk of the type of harm which
has occurred as a result of its violation. Id. at 986.
In this case, the trial court found that Cook was negligent per se
for violating a duty proscribed by Indiana Code § 15-5-12-1. However, Indiana
Code § 15-5-12-1 does not proscribe a duty that can be violated.
The function of Indiana Code § 15-5-12-1 is to remove the presumption that
a dog is harmless in situations where an unprovoked dog bites a 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. Indiana Code § 15-5-12-1 relieves qualifying plaintiffs
of the burden of establishing a dog owners knowledge of the dogs dangerous
propensity, but the statute does not place any additional duties on dog owners.
Because there was no statutory duty that could be violated in this
case, Cook could not be negligent per se.
While Whitsell-Sherman should have been relieved of the burden of establishing any former
viciousness of Cooks Rottweiler in his negligence action, he still had the burden
of establishing that Cook failed to exercise reasonable care to prevent the dog
from causing injury or damage. In finding Cook negligent per se, the
trial court improperly lowered the burden for Whitsell-Sherman to bring a successful claim.
If this case had been treated as a typical negligence action, Whitsell-Sherman
still may have been successful in establishing that Cook was liable for his
damages; however, we are not in a position to make that determination.See footnote
Thus, we reverse and remand for a new trial.
Although this issue is dispositive, we address the issue of evidence of future
medical expenses as it is likely to arise on retrial.
II. Future Medical Expenses
Cook argues that 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. Cook argues that this evidence was inadmissible because it was
hearsay and because it was too speculative. We disagree.
Initially, we note that this Court presumes that a trial courts evidentiary rulings
are correct and affords wide latitude and great deference to its decision regarding
the admission of evidence. Rowe v. State, 717 N.E.2d 1262, 1264 (Ind.
Ct. App. 1999). At trial, Whitsell-Sherman introduced into evidence a letter from
Community Hospital Anderson, which provided the estimated costs for two types of hand
surgery; a letter from Dr. Bert Daviss office providing an estimate of what
his charge would be for the surgery; a letter from Anesthesia Services, Ltd.
providing estimated costs for varying lengths of anesthetic services; and a summary of
Whitsell-Shermans future medical expenses compiled by his lawyer, including an estimate of medical
prescriptions over a 23.8 year life expectancy. After Cook objected to this
evidence at trial, the trial court took the matter under advisement and later
ruled in its Findings of Fact and Conclusions of Law, That Plaintiff, Kenneth
Whitsell-Shermans estimated future medical expenses are admissible pursuant to IRE 413. Appellees
App. p. 4.
Indiana Evidence Rule 413 provides, [s]tatements 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. Kellett v. State, 716 N.E.2d 975, 982 n.3 (Ind. Ct.
App. 1999). Rule 413 provides for the admission of statements of medical
charges, and the rule does not qualify that only statements of charges for
past treatment are admissible. While Cook is free to challenge the reasonableness
of those estimated charges, the statements of possible medical charges should not be
excluded because they are for future treatment. Even though the future can
never be confidently predicted with complete accuracy, courts in this state have not
found future medical expenses to be speculative. Therefore, we find that the
trial court properly admitted the evidence of Whitsell-Shermans estimated future medical charges even
though those charges and the corresponding medical treatment may never come to pass.
Judgment reversed and remanded.
RILEY, J., and MATTINGLY-MAY, J., concur.
In addition, Indiana Code § 15-5-12-1 allows for discretion in determining whether
a dog owner should be liable for damages. The statute only states
that the owner of such dog may be held liable for any damages
suffered by the person bitten. I.C. § 15-5-12-1 (emphasis added). The term
may in statutes ordinarily indicates a permissive condition and discretion. Haltom v.
Bruner and Meis, Inc, 680 N.E.2d 6, 9 (Ind. Ct. App. 1997).
Thus, we also find that Indiana Code § 15-5-12-1 does not make a
dog owner liable under a theory of strict liability.
We do note that if the trial court finds against Cook on
remand, the trial court should apportion liability for Whitsell-Shermans damages among the parties.
The trial court originally entered judgment against the defendants, Tamara Cook, Joseph
Hart and Mara [sic] Hart, jointly and severally. . . . Appellants
App. p. 9. However, Whitsell-Shermans claim was subject to the Comparative Fault
Act. Ind. Code § 34-51-2-1. Under the Comparative Fault Act, liability
is to be apportioned among persons whose fault caused or contributed to causing
the loss in proportion to their percentages of fault . . . .
Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 109 (Ind. 2002) (citing
Ind. Code § 34-51-2-8; Cahoon v. Cummings, 734 N.E.2d 535, 541 (Ind. 2000)).
In actions under the Comparative Fault Act that are tried by the
court without a jury, the trial court has the responsibility of apportioning liability.
See Ind. Code § 34-51-2-9.