                                                                            FILED
                                                                    Feb 19 2019, 9:04 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
J. David Agnew                                        William H. Kelley
Lorch Naville Ward LLC                                Thaddeus C. Kelley
New Albany, Indiana                                   Kelley Law Offices LLC
                                                      Bloomington, Indiana
Kenneth Doane
Doane Law Office, LLC
Jeffersonville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Darlene Perkins,                                           February 19, 2019
Appellant-Plaintiff,                                       Court of Appeals Cause No.
                                                           18A-PL-2278
        v.                                                 Appeal from the Washington
                                                           Circuit Court
Kathy Fillio,                                              The Hon. Larry Medlock, Judge
Appellee-Defendant.                                        Trial Court Cause No.
                                                           88C01-1703-PL-183



Bradford, Judge.




Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019                           Page 1 of 15
                                           Case Summary                       1




[1]   When Kathy Fillio left her Salem home in 2016 to spend some time in Florida,

      she left it and her animals under the care of her half-brother Dennis Slate.

      When a goat became ill, Slate called Darlene Perkins for help. As Perkins bent

      over to help the ill goat, a ram headbutted her, causing her to fall and break her

      arm or wrist. Perkins sued Fillio for negligence, both parties moved for

      summary judgment on the question of liability, and the trial court entered

      summary judgment in favor of Fillio. The trial court reasoned that Fillio had

      no way of knowing that Perkins would be on her property or that the ram had

      any dangerous propensities. Perkins argues that the trial court should have

      instead entered summary judgment in favor of her or, at the very least, that

      there is a genuine issue of material fact which precludes the entry of summary

      judgment in favor of Fillio. Because we conclude that Perkins’s designated

      evidence does indeed generate a genuine issue of material fact as to Fillio’s

      potential liability, we reverse and remand for further proceedings.



                             Facts and Procedural History
[2]   Fillio owns a home on land in Salem (“the Property”), on which she has, at

      various times, kept horses, cows, steers, sheep, goats, chickens, dogs, cats, and




      1
       We heard oral argument in this case on January 28, 2019, at Ben Davis High School in Indianapolis,
      hosted by the Area 31 Career Center. We would like to thank the faculty, staff, and students of Ben
      Davis and Area 31 for their hospitality and counsel for the high quality of their oral and written
      advocacy.

      Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019                    Page 2 of 15
      guinea pigs. Fillio spends roughly half of her time at the Property and the other

      half at a home in Florida. In August of 2016, Fillio was in Florida and left

      Slate in charge of caring for her animals. Fillio later indicated that Slate’s

      responsibilities were limited to feeding and watering the animals. While Fillio

      was gone, a female goat fell ill, and Slate unsuccessfully tried to contact Fillio

      by telephone. On August 21, 2016, Slate contacted Perkins for help because she

      had more experience with farm animals, and Perkins agreed to come to the

      Property. When Perkins arrived, she saw the bleating goat on the ground in a

      pen with other animals, including a sheep. Slate invited her into the pen, and

      they loaded the goat onto a cart. Slate pulled the cart while Perkins followed

      behind, trying to keep the goat’s head inside. As it happens, the sheep in the

      pen was a ram, i.e., an uncastrated male sheep. As Perkins bent over to assist

      the female goat, the ram headbutted her, knocking her to the ground and

      breaking her arm or wrist. Perkins’s injuries required two surgeries.


[3]   On March 13, 2017, Perkins sued Fillio for negligence. On May 5, 2018, Fillio

      moved for summary judgment. Fillio designated portions of hers and Perkins’s

      depositions. On May 3, 2017, Perkins filed a response in which she also moved

      for summary judgment on the question of liability, also designating portions of

      hers and Fillio’s depositions as well as affidavits from herself and from Dr.

      Dwayne Allen, DVM.


[4]   According to Dr. Allen’s affidavit, rams are generally territorial and tend to

      defend themselves, their territory, and females perceived to be in their herd by

      headbutting unfamiliar animals or persons, tendencies of which sheep farmers

      Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019      Page 3 of 15
      are generally aware. Perkins averred that she was aware that there was a sheep

      in the pen but was not aware that it was a ram because it had no visible horns.

      Perkins also averred that she had never owned a sheep or ram and was not

      familiar with their natural propensities and that Slate had never warned her that

      a ram might be protective and territorial toward an animal which it perceived to

      be part of its herd. Fillio’s testimony makes it clear that she knew that the sheep

      she owned was, in fact, a ram, despite its lack of horns.


[5]   On August 29, 2018, the trial court entered summary judgment in favor of

      Fillio:


                [H]aving heard arguments on Defendant’s Motion for Summary
                Judgement and being duly advised [the trial court] NOW FINDS
                AND ORDERS:
                   1.    That Kathy Fillio made arrangements to have her
                         brother feed her “domestic” livestock while she was
                         absent.
                   2.    Domestic animal is defined in I.C. 15-17-2-26.
                   3.    There was a lack of evidence indicating that the
                         Defendant knew the Plaintiff would be on her real
                         estate in particular inside the area where the Plaintiff
                         kept the ram and other sheep.
                   4.    That there was no evidence that the ram had been
                         aggressive toward anyone in the past.
                   5.    That the Defendant has not violated a duty of care to
                         the Plaintiff.
                WHEREFORE, the Motion for Summary Judgment is hereby
                GRANTED in favor of the Defendant and against the Plaintiff.

      Appellant’s App. Vol. II p. 7.




      Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019     Page 4 of 15
                                  Discussion and Decision
[6]   The trial court entered summary judgment in favor of Fillio. The standard of

      review of a summary judgment order is well-settled. Summary judgment is

      appropriate if the designated evidentiary matter shows that there is no genuine

      issue as to any material fact and that the moving party is entitled to judgment as

      a matter of law. Ind. Trial Rule 56(C); Spudich v. N. Ind. Pub. Serv. Co., 745

      N.E.2d 281, 289 (Ind. Ct. App. 2001). Summary judgment will be granted

      where the evidence presented demonstrates that no genuine issue of material

      fact exists, entitling the moving party to judgment as a matter of law. Ind. Trial

      Rule 56(C). Summary judgment is intended to end litigation about which there

      can be no factual dispute. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind. Ct.

      App. 1995) (citing Liberty Mut. Ins. Co. v. Metzler, 586 N.E.2d 897, 899 (Ind. Ct.

      App. 1992)). Once the movant for summary judgment has established that no

      genuine issue of material fact exists, the nonmovant may not rest on her

      pleadings but must set forth specific facts which show the existence of a genuine

      issue for trial. Wade v. Norfolk & W. Ry. Co., 694 N.E.2d 298, 301 (Ind. Ct. App.

      1998).


[7]   We are bound by the same standard as the trial court and will consider only

      those matters which were designated at the summary judgment stage. Spudich,

      745 N.E.2d at 290. We will not reweigh the evidence but will liberally construe

      all designated evidentiary material in the light most favorable to the nonmoving

      party to determine whether there is a genuine issue of material fact for trial. Id.

      The party who lost at the trial court has the burden to persuade the appellate

      Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019     Page 5 of 15
      court that the trial court erred. Id. A trial court’s grant of summary judgment is

      clothed with a presumption of validity. Wicker v. McIntosh, 938 N.E.2d 25, 28

      (Ind. Ct. App. 2010). A grant of summary judgment may be affirmed by any

      theory supported by the designated materials. Id. However, a trial court’s grant

      of summary judgment may not be reversed on a ground which was not

      presented to the trial court. Nance v. Miami Sand & Gravel, 825 N.E.2d 826, 834

      (Ind. Ct. App. 2005).


[8]   Perkins sued Fillio for negligence, a tort that requires proof of “(1) a duty owed

      by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the

      plaintiff resulting from the defendant’s breach.” Rhodes v. Wright, 805 N.E.2d

      382, 385 (Ind. 2004). “Negligence will not be inferred; rather, all of the

      elements of a negligence action must be supported by specific facts designated

      to the trial court or reasonable inferences that might be drawn from those

      facts.” Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind. Ct. App. 2002). “An

      inference is not reasonable when it rests on no more than speculation or

      conjecture.” Id. “A negligence action is generally not appropriate for disposal

      by summary judgment.” Id. “However, a defendant may obtain summary

      judgment in a negligence action when the undisputed facts negate at least one

      element of the plaintiff’s claim.” Id.


                                        I. Premises Liability
[9]   Perkins argues that the trial court should have concluded, as a matter of law,

      that Fillio was negligent for not taking measures adequate to ensure that her


      Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019      Page 6 of 15
ram did not injure invitees2 such as Perkins. As a general rule, “a landowner

owes the highest duty to an invitee: a duty to exercise reasonable care for his

protection while he is on the landowner’s premises.” Burrell v. Meads, 569

N.E.2d 637, 639 (Ind. 1991).


         The best definition of this duty comes from the Restatement
         (Second) of Torts § 343 (1965):
            A possessor of land is subject to liability for physical harm
            caused to his invitees by a condition on the land if, but only if,
            he
               (a) knows or by the exercise of reasonable care would
               discover the condition, and should realize that it involves
               an unreasonable risk of harm to such invitees, and
               (b) should expect that they will not discover or realize the
               danger, or will fail to protect themselves against it, and
               (c) fails to exercise reasonable care to protect them against
               the danger.

Id. at 639–40.




2
  Fillio concedes that Perkins was invited upon the property by Slate but does not concede that she was an
invitee of Fillio. In our view, this distinction does not help Fillio, as it was foreseeable that Slate might have
to invite others onto the Property to help care for the animals. In fact, Fillio was aware Slate had done this in
2013, when Slate invited Perkins onto the Property to assist him with a sick steer. Although Fillio denied
that she knew Perkins was the person Slate invited onto the Property, she was aware that he had invited
someone in the past.

Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019                                Page 7 of 15
[10]   Indiana law also specifically addresses the question of liability for injury caused

       by domestic animals:3


                [t]he owner of a domestic animal is not liable for injuries caused
                by the animal unless the animal had dangerous propensities
                known, or which should have been known, to the owner. Burgin v.
                Tolle (1986), Ind. App., 500 N.E.2d 763; Doe v. Barnett (1969), 145
                Ind. App. 542, 251 N.E.2d 688. A dangerous propensity is “a
                propensity or tendency of an animal to do any act which might
                endanger the safety of person or property in a given situation.”
                Weaver v. Tucker (1984), Ind. App., 461 N.E.2d 1159, 1161
                (citation omitted). If an individual animal lacks dangerous
                propensities, “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.” Burgin, supra, 500 N.E.2d at
                766. In either event, the owner must exercise reasonable care to
                guard against the propensities and to prevent injuries reasonably
                anticipated from them. Borton v. Lavenduskey (1985), Ind. App.,
                486 N.E.2d 639, reh’g. denied, 488 N.E.2d 1129, trans. denied.

       Forrest v. Gilley, 570 N.E.2d 934, 935 (Ind. Ct. App. 1991), trans. denied.


[11]   As the Indiana Supreme Court has explained in a dog-bite case,


                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



       3
         It is undisputed that the ram that caused Perkins’s injuries qualifies as a domestic animal under Indiana
       law:

           (a) “Domestic animal” means an animal that is not wild
           (b) The term is limited to:
                (1) cattle, calves, mules, swine, sheep, goats, dogs, cats, poultry, ostriches, rhea, emus, or
                other birds [or]
                (2) an animal of the bovine, equine, ovine, caprine, porcine, canine, feline, avian, camelid,
                cervidae, or bison species[.]

       Ind. Code § 15-17-2-26.

       Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019                               Page 8 of 15
               of reasonable care under the circumstances. Reasonable care
               requires that the care employed and the precautions used be
               commensurate with the danger involved under the circumstances
               of a particular case. 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 jury.

       Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (citation omitted).


[12]   Pursuant to Forrest and Ross, then, a duty to protect against harm caused by

       domestic animals can be established by one (or both) of the following: (1) a

       defendant’s knowledge that a particular animal has a propensity for violence or

       (2) a defendant’s ownership of a member of a class of animals that are known to

       have dangerous propensities, as the owner of such an animal is bound to have

       knowledge of that potential danger. See Forrest, 570 N.E.2d at 935.


[13]   Fillio’s argument is that the owner of a domestic animal that causes injury

       cannot be held liable in the absence of specific knowledge that the animal in

       question has exhibited dangerous tendencies. As we have seen, however, a lack

       of that specific knowledge does not necessarily relieve a domestic animal owner

       of liability. Fillio relies on language indicating that “‘[o]wners of domestic

       animals may […] 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.’” Gruber v. YMCA of Greater Indpls., 34 N.E.3d 264, 267 (Ind. Ct.

       App. 2015) (quoting Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255,

       1259 (Ind. 2003) (emphasis supplied by Gruber court removed)). This language,

       originally from the Indiana Supreme Court’s decision in Poznanski, does not


       Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019     Page 9 of 15
       exclude binding an animal owner with knowledge that her animal belongs to a

       class of animals known to have dangerous propensities. The Court’s

       pronouncement specifically includes those owners who know or have reason to

       know that their domestic animal has dangerous propensities, which would

       include those without specific knowledge about a particular animal. Indeed, in

       the very case on which Fillio relies, we affirmed the grant of summary judgment

       in favor of the owner of a pig which had bitten a person only because (1) “the

       evidence designated at summary judgment show[ed] that […] the pig had never

       injured anyone or exhibited any dangerous propensities, including on the day in

       question” and (2) “the plaintiffs designated no evidence that the particular breed to

       which the pig belonged has dangerous propensities.” Gruber, 34 N.E.3d at 267–68

       (emphasis added).


[14]   Here, while Perkins did not designate any evidence that the ram had ever

       exhibited any dangerous tendencies of which Fillio was aware, she did

       designate evidence that rams, as a class, do have dangerous tendencies, at least

       under certain circumstances. Specifically, Perkins designated Dr. Allen’s

       affidavit, in which he averred that rams are generally territorial and tend to

       defend themselves, their territory, and females perceived to be in their herd by

       headbutting unfamiliar animals or persons. This evidence generates a genuine

       issue of material fact as to the dangerous tendencies of rams, which, if true,

       Fillio is bound to have known. This would in turn generate a genuine issue as

       to whether Fillio took reasonable precautions under the circumstances to

       prevent the ram from causing injury to invitees on her land. We conclude that


       Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019          Page 10 of 15
       the trial court erred in entering summary judgment in favor of Fillio on

       Perkins’s premises-liability claim.


                 II. Negligent Entrustment and/or Supervision
                                               A. Entrustment
[15]   Perkins also contends that Fillio, as a matter of law, is liable under a theory of

       negligent entrustment.


               To prove a claim of negligent entrustment, a plaintiff must prove:
               (1) an entrustment; (2) to an incapacitated person or one who is
               incapable of using due care; (3) with actual and specific
               knowledge that the person is incapacitated or incapable of using
               due care at the time of the entrustment; (4) proximate cause; and,
               (5) damages. Brewster v. Rankins, 600 N.E.2d 154, 158–59 (Ind.
               Ct. App. 1992).

       Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind. Ct. App. 1996). The gist of

       Perkins’s argument is that Fillio was negligent, as a matter of law, for entrusting

       the care of her animals to Slate. At issue is whether (1) Slate was incapable of

       using due care to protect invitees from the animals and (2) whether Fillio

       actually knew Slate to be incapable of using due care.


[16]   Perkins designated evidence that Slate was in poor health and knew nothing

       about caring for farm animals. Even if we assume that this is enough to

       establish an incapacity to protect invitees from Fillio’s animals, Perkins has

       failed to designate any evidence that Fillio had specific and actual knowledge of

       this incapacity. We conclude that the trial court correctly entered summary


       Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019     Page 11 of 15
       judgment in favor of Fillio to the extent that Perkins made a claim of negligent

       entrustment.


                                               B. Supervision
[17]   Perkins contends that Fillio, as a matter of law, is liable pursuant to a theory of

       negligent supervision of her agent Slate. Perkins points to designated evidence

       that Fillio had Slate look after her animals despite leaving him no instructions

       for addressing an emergency, leaving no funds to pay a veterinarian should one

       become necessary, and making herself difficult to contact. At the outset, it is

       worth noting that Perkins bases this argument, in part, on Section 7.05 of the

       Third Restatement of Agency, which provides that “[a] principal who conducts

       an activity through an agent is subject to liability for harm to a third party

       caused by the agent’s conduct if the harm was caused by the principal’s

       negligence in selecting, training, retaining, supervising, or otherwise controlling

       the agent.” RESTATEMENT (THIRD) OF AGENCY § 7.05 (AM. LAW. INST. 2006).

       This provision, however, has never been adopted by Indiana courts, and, in

       fact, the Indiana Supreme Court recently rejected an invitation to do so, albeit

       in the slightly different context of a negligent hiring claim. See Sedam v. 2JR

       Pizza Enters., LLC, 84 N.E.3d 1174, 1179 (Ind. 2017) (“Although the

       Restatement (Third) of Agency [section 7.05] may find otherwise, Indiana has

       developed a line of precedent according to [Tindall v. Enderle, 162 Ind. App.

       524, 320 N.E.2d 764 (1974)] and section 317 of the Restatement (Second) of

       Torts [regarding negligent hiring claims], and we find no reason to upset

       reliance on this point.”) (footnote omitted).

       Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019     Page 12 of 15
[18]   Moreover, the case cited by Perkins to support her negligent supervision claim,

       Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009), addresses the negligent

       retention and supervision of an employee, and there is no designated evidence

       that Slate was an employee of Fillio’s. See id. at 257 (“Negligent retention and

       supervision is a distinct tort from respondeat superior; it may impose liability on

       an employer when an employee ‘steps beyond the recognized scope of his [or

       her] employment to commit a tortious injury upon a third party.’”) (citation

       omitted). We conclude that Perkins has failed to produce sufficient authority to

       support her argument that Fillio may be held liable for negligent supervision of

       Slate.4


                                         III. Vicarious Liability
[19]   Finally, Perkins contends that Fillio should be held vicariously liable for the

       negligence of Slate, her agent, even if she were not herself negligent. Section

       214 of the Second Restatement of Agency provides as follows:


                 A master or other principal who is under a duty to provide
                 protection for or to have care used to protect others or their
                 property and who confides the performance of such duty to a
                 servant or other person is subject to liability to such others for
                 harm caused to them by the failure of such agent to perform the
                 duty.

       RESTATEMENT (SECOND) OF AGENCY § 214 (AM. LAW. INST. 1958).




       4
         In any event, this claim, at least as stated here, is arguably indistinguishable from Perkins’s claim of
       negligent entrustment.

       Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019                               Page 13 of 15
[20]   Fillio argues that Perkins failed to argue this ground in the trial court and may

       not now raise it for the first time on appeal. We agree that Perkins has waived

       the issue for appellate review. See, e.g., Nance, 825 N.E.2d at 834 (“[A] trial

       court’s grant of summary judgment may not be reversed on a ground which was

       not presented to the trial court.”). Moreover, Perkins does not seem to claim,

       even on appeal, that Slate was negligent, much less point to any designated

       evidence that would support such a conclusion. Without the underlying

       negligence of the agent, there can be no vicarious liability.



                                                 Conclusion
[21]   We conclude that the trial court erred in granting summary judgment in favor

       of Fillio on Perkins’s premises liability claim. Perkins designated evidence that

       rams have dangerous tendencies as a class of animals, knowledge with which

       Fillio would be charged pursuant to Indiana law, if true. There is, therefore, a

       genuine issue of material fact as to whether rams are dangerous as a class of

       animals and, if so, a genuine issue as to whether Fillio took reasonable

       measures to prevent the ram from causing harm to invitees like Perkins.

       Perkins, however, did not designate evidence sufficient to generate a genuine

       issue of material fact as to negligent entrustment or negligent supervision.

       Finally, Perkins did not preserve her claim of vicarious liability for appellate

       review, a claim that is not supported by any designated evidence of underlying

       negligence in any event.


[22]   We reverse the judgment of the trial court and remand for further proceedings.

       Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019     Page 14 of 15
Kirsch, J., and Altice, J., concur.




Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019   Page 15 of 15
