                                                                     May 18 2015, 9:17 am




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Hilary A. Barnes                                          Peter G. Wenzl
Christopher & Taylor                                      Nationwide Mutual Insurance Company
Indianapolis, Indiana                                     Indianapolis, Indiana
Scott A. Benkie
Benkie & Crawford
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Gary P. Byers,                                            May 18, 2015

Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          34A04-1412-CT-560
        v.                                                Appeal from the Howard Superior
                                                          Court

Robert E. Moredock and                                    The Honorable George A. Hopkins,
                                                          Judge
Rhoda S. Moredock,
                                                          Cause No. 34D04-1206-CT-595
Appellees-Defendants.




Brown, Judge.




Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015                      Page 1 of 14
[1]   Gary P. Byers appeals the trial court’s order granting summary judgment in

      favor of Robert E. Moredock and Rhoda S. Moredock. Byers raises two issues,

      which we consolidate and restate as whether the court erred in entering

      summary judgment in favor of the Moredocks and against him. We affirm.


                                       Facts and Procedural History

[2]   On or about January 30, 2012, Byers was riding his motorcycle on County

      Road West 250 South (the “Roadway”) in Howard County, Indiana, when a

      dog ran into the Roadway and caused him to have an accident and sustain

      injuries. The dog belonged to Jessica Stine, who lived in a house on a property

      (the “Property”) owned by the Moredocks and leased to Tom Stine, and which

      was located along the Roadway.


[3]   On June 7, 2012, Byers filed a complaint against the Moredocks and Jessica

      Stine. Byers alleged that Jessica was the owner of a dog later determined to be

      a Rottweiler and that Jessica resided at the Property owned by the Moredocks.

      He alleged that he was operating his motorcycle in a lawful and safe manner on

      the Roadway, that a dog left the yard of the Property, which was not fenced in,

      and entered the Roadway striking his motorcycle, that the motorcycle flipped

      several times, and that he was ejected. Byers also alleged that the Moredocks

      rent the residence on the Property to Jessica and utilize the pole barn on the

      Property to work on furniture and other items, that Robert Moredock works on

      the property on a fairly regular basis and was familiar with the Rottweiler

      named Brutus, and that Robert stated he was aware that the dog did run loose

      on the property and also that the dog did leave the yard on occasion. The
      Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015    Page 2 of 14
      complaint further stated that the Moredocks failed to comply with the

      requirements of an ordinance enacted on or about February 18, 2008 (the

      “Ordinance”), “having knowledge that the dog was not restrained by a leash

      and not under complete control as required under the Ordinance,” and that the

      Moredocks had a duty under the Ordinance “to restrain and harbor the dog

      pursuant to the Ordinance and breached that duty by permitting the dog to run

      at-large on the [Property].” Appellant’s Appendix at 10. Finally, Byers alleged

      that the Moredocks failed to discharge their duty under the Ordinance and as a

      result of their negligent acts and omissions, he incurred property damage and

      injuries.


[4]   On September 30, 2014, the Moredocks filed a motion for summary judgment

      together with designated evidence and a brief in support of the motion. In their

      motion, the Moredocks alleged that the dog was owned by Jessica, whose

      father Tom was leasing the premises from them, they leased the premises to

      Tom without a written agreement, they used a pole barn on the premises but

      otherwise did not retain control of the premises, they had no knowledge of the

      dog’s dangerous propensities, and thus that they owed no duty to Byers. The

      designated evidence included the depositions of Robert and Rhoda Moredock.


[5]   In his deposition Robert testified that the Property consisted of four acres which

      he had inherited, he constructed the pole barn in 1987 and used it to refinish

      furniture, he rented the Property five to seven times since 1996 and that, prior

      to this lawsuit, he never used a written lease. He testified that his agreement

      with Tom was that Tom would pay the rent, that two dogs lived at the house

      Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015   Page 3 of 14
      and that he never saw the dog that struck Byers’s motorcycle leave the Property

      or chase down other animals. When asked about his weekly visit to the

      Property, Robert stated he would pick up sticks, check or clean the pole barn,

      and work on furniture. He indicated he did not enter the house on the Property

      and that he would greet Tom or his family if they were outside, and that the

      dogs were usually in the house and, if not, they were on a chain. When asked

      the location of the chain, he testified one was on the front porch and that he

      had placed a metal post in the backyard. He stated he considered the dog that

      struck Byers’s motorcycle to be friendly and that the Stines had had the dog for

      a couple of years.


[6]   In her deposition, Rhoda indicated that approximately two times a month she

      would accompany Robert to the Property and assist him with stripping and

      sanding furniture in the pole barn. She also testified that she saw the dog loose

      in the yard only when someone came out with the dog, that the dog was

      friendly with her, and that she never saw the dog chase another animal or a car.


[7]   On October 31, 2014, Byers filed a brief in response to the Moredocks’

      summary judgment motion and a cross-motion for summary judgment together

      with designated evidence and a brief. He argued that the Moredocks had a duty

      under the Ordinance to restrain the dangerous dog and breached that duty by

      permitting it to run at large on the Property they control.


[8]   Byers’s designated evidence included interrogatory answers of the Moredocks,

      the affidavit of Dan Jeffries, and the Ordinance. In their answers to


      Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015   Page 4 of 14
       interrogatories, the Moredocks indicated that the premises were not fenced, and

       when asked on how many occasions and with whom they had seen the dog out

       in the yard before, the Moredocks answered “[s]everal,” and “Jessica Stine.”

       Id. at 128. When asked whether the dog had “a tendency to run into the

       street,” they answered “[n]ot to our knowledge,” and when asked “[d]id you

       ever observe the dog ‘chasing’ cars and/or motorcycles,” they answered “[n]o.”

       Id.


[9]    In his affidavit, Jeffries stated that he was hired by counsel for Byers to

       investigate the accident and conduct interviews of witnesses, and that he

       interviewed Robert Moredock in his driveway at his home. Jeffries’ affidavit

       stated that, during the interview, Robert said that the Rottweiler is “a country

       dog that runs lose [sic] a lot, but that usually stays in the yard. The only time

       he leaves the yard is to chase a squirrel or another animal.” Id. at 129. The

       affidavit also stated: “On another date, after my interview with Mr. Moredock,

       and while I was investigating the scene of this accident, I witnessed a

       Rottweiler, matching the description of the dog at issue in this case, running

       lose [sic] with no visible form of leash or restraint.” Id.


[10]   Section 3 of the Ordinance included in the designated evidence provides in part:

               B. It shall be unlawful for any owner to allow, suffer, or permit an
               animal to be at large within the unincorporated area of Howard
               County.
                                                      *****
               E. It shall be unlawful for any person to own, keep, or harbor a
               dangerous dog or wild animal within the Howard County; provided

       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015         Page 5 of 14
        this section shall not apply to animals under the control of a law
        enforcement or military agency. For the purpose of this Ordinance, an
        animal may be declared dangerous by the Department of Animal
        Services.

Id. at 134-135. Section 1 of the Ordinance includes definitions of terms and

provides in part:

        C. “At large” means elsewhere than on the owner’s premises, and:
                 1. Not restrained by a leash, OR
                 2. Not under the immediate and complete control of a person
                 capable of controlling such animal.
                                               *****
        F. “Dangerous Dog” means any dog that according to the records of
        the Department of Animal Services:
                 (1) Has aggressively bitten, attacked, or endangered or has
                 inflicted severe injury or death on a human being on public or
                 private property; or
                 (2) Has been used primarily or in part for the purpose of dog
                 fighting or is a dog trained for dog fighting.
                 (3) Has been listed as a potentially dangerous dog by the
                 Department of Animal Services, and exhibits behavior
                 warranting listing as a Dangerous Dog.
                                               *****
        I. “Harbor” means the actions of any person who permits any animal
        to habitually remain or lodge or to be fed within his home, store,
        enclosure, yard, or place of business, or any premises on which such
        person resides or controls. An animal shall be presumed harbored if it
        is fed or sheltered for three (3) days.
                                               *****
        M. “Owner” means any person or persons owning or having the care,
        custody, or control of any animal.
                                               *****


Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015            Page 6 of 14
               Q. “Restraint” means the securing of an animal by leash or confining
               it within the real property limits by its owner.

       Id. at 130-132.


[11]   On November 12, 2014, the trial court entered an order granting summary

       judgment in favor of the Moredocks and against Byers.


                                                    Discussion

[12]   The issue is whether the trial court erred in entering summary judgment, which

       is appropriate only where 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);

       Mangold ex rel. Mangold v. Ind. Dep’t of Natural Resources, 756 N.E.2d 970, 973

       (Ind. 2001). All facts and reasonable inferences drawn from those facts are

       construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review

       of a summary judgment motion is limited to those materials designated to the

       trial court. Id. In reviewing a trial court’s ruling on a motion for summary

       judgment, we may affirm on any grounds supported by the Indiana Trial Rule

       56 materials. Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).

       We review a summary judgment order de novo. Bules v. Marshall Cnty., 920

       N.E.2d 247, 250 (Ind. 2010). The fact that the parties make cross-motions for

       summary judgment does not alter our standard of review. Sterling Commercial

       Credit-Mich., LLC v. Hammert’s Iron Works, Inc., 998 N.E.2d 752, 756 (Ind. Ct.

       App. 2013). Instead, we must consider each motion separately to determine

       whether the moving party is entitled to judgment as a matter of law. Id.



       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015         Page 7 of 14
[13]   Byers contends that the Moredocks had a duty under the Ordinance to restrain

       the dog that struck his motorcycle and breached that duty by permitting the

       dangerous dog to run at large on the Property they control. He points to the

       definition of “harbor” in the Ordinance and argues that the Ordinance

       contemplates that a person who controls the property has a duty to ensure the

       public is not harmed by allowing a dog to run at large and that, by

       distinguishing “keeping” and “harboring” from ownership, the Ordinance has a

       broader reach than statutes or ordinances that impose liability solely on the dog

       owners. Byers notes that Robert went to the Property weekly to pick up sticks

       in the yard and clean and use the pole barn to work on furniture, there was no

       lease, the Moredocks visited the Property whenever they wished, and that

       Robert installed a post in the back to hold a chain to secure the dogs. He

       contends that a jury could infer from these facts that Robert retained control not

       only over the pole barn but also the yard and all outside areas of the Property.

       In addition, Byers asserts that the fact that Robert installed a post to restrain the

       dog shows that he knew of its dangerous propensity to run at large, and points

       to Jeffries’ affidavit regarding Robert’s statement that the dog ran loose a lot,

       usually stayed in the yard, and only left the yard to chase a squirrel or another

       animal, and says that these facts lead to a reasonable inference that the

       Moredocks knew of the dog’s propensity to run at large into the Roadway.

       Additionally, Byers maintains that, by installing a post and chain in the yard,

       Robert assumed a duty to restrain the dog, that the mere installation of the post

       and chain was an insufficient means of restraining the dog, and that Robert

       breached the duty he assumed when he installed the stake.
       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015      Page 8 of 14
[14]   The Moredocks’ position is that summary judgment was appropriately granted

       in their favor, they were not the owners or keepers of the dog and therefore did

       now owe Byers a duty to properly confine it, the fact Robert installed a metal

       post in the yard shows merely that he provided his tenants with a means by

       which the dog could be restrained, and that there is no evidence whatsoever

       that the Moredocks ever restrained the dog or had responsibility for its care.

       They contend that the Ordinance refers to persons who own, keep or harbor “a

       dangerous dog” and that there is no evidence the Moredocks were the owners

       or keepers of the dog, that they ever harbored the dog, or that the dog was a

       dangerous dog. Appellees’ Brief at 8. They further contend that they did not

       retain control over the premises or have actual knowledge that the dog had a

       dangerous propensity, and they retained only the right to use the pole barn and

       there is no evidence the dog was ever kept or seen there.


[15]   In his reply brief, Byers asserts that the Moredocks controlled the entire

       Property except the inside of the house, and that if Robert retained no control

       over the yard, he would not have had authority to place a metal post in, and

       that according to the investigator the Moredocks knew the Rottweiler left the

       yard chasing other animals.


[16]   In Blake v. Dunn Farms, Inc., the Indiana Supreme Court held:

               [I]t is the duty of the owner and the keeper of the animal to keep him
               confined, and the mere possession or ownership of land from which an
               animal strays is not sufficient to make the landowner liable, so long as
               the landowner is not the keeper of such animal. This is and has always
               been the law in Indiana. If the landowner is neither the owner nor

       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015        Page 9 of 14
               keeper, he has no duty to confine or restrain the animal. If an animal
               is allowed by its keeper to escape from its confinement and harm
               results, that damage results from the negligent confinement, not from
               the condition of the land. To the extent that the condition of the land
               made it inadequate or unsuitable for confinement, the responsibility
               for selecting an adequate method of confinement is upon the keeper,
               not upon the landowner who neither owned nor kept the animal.

       274 Ind. 560, 565, 413 N.E.2d 560, 563 (1980) (citations omitted).


[17]   In Baker v. Weather ex rel. Weather, this Court stated that, in order to prevail on a

       claim against the property owners who did not own the dog, the plaintiffs were

       required to demonstrate both that the landowners “retained control over the

       property” and “had actual knowledge that the [dog] had dangerous

       propensities.” 714 N.E.2d 740, 741 (Ind. Ct. App. 1999) (citations omitted).

       The absence of either component will result in a finding for the landowner.

       Morehead v. Deitrich, 932 N.E.2d 1272, 1276 (Ind. Ct. App. 2010), trans. denied.

       A dangerous or vicious 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.” Baker, 714 N.E.2d at 742 (citations omitted). It is not reasonable to

       attribute dangerous propensities to a dog merely because it barks at strangers, a

       person is afraid of the dog, or a city ordinance requires dogs to be restrained at

       all times, and it is not reasonable to infer actual knowledge of dangerous

       propensities merely because a dog may have strayed. See id.


[18]   In Morehead v. Deitrich, we addressed the argument that the relationship

       established by entering into a lease imposes upon a landlord the duty to ensure

       the confinement of the tenant’s dog. 932 N.E.2d at 1279. We held that

       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015        Page 10 of 14
       “foreseeability and public policy militate strongly against imposing a duty of

       care upon a landlord with respect to animals owned or kept by his or her

       tenants by virtue of entering into a lease with the knowledge that the tenant

       owns a dog with vicious tendencies.” 932 N.E.2d at 1279. As to foreseeability,

       we noted that “[i]mposition of a duty is limited to those instances where a

       reasonably foreseeable victim is injured by a reasonably foreseeable harm.” Id.

       (citation omitted). We then stated:

               We agree that it is reasonably foreseeable that a vicious dog, upon
               escaping its house or yard and encountering a stranger on a sidewalk,
               may bite that stranger. We, however, cannot say that it is reasonably
               foreseeable that that dog indeed will escape its confinement. It is not
               the dog’s mere presence on leased property that causes harm. Rather,
               it is the owner’s failure to adequately confine that dog. Thus, we do
               not conclude that there is a high degree of foreseeability that leasing
               property to the owners of vicious dogs will result in injury to third
               parties.
                                                      *****
               We agree that society has an interest in preventing dog attacks against
               innocent parties, and therefore in keeping vicious dogs adequately
               confined. It would be unreasonable, however, to impose a duty on
               landlords to regulate tenants’ animals, where the owners clearly are in
               the best position to do so.

       Id. at 1280.


[19]   With respect to Byers’ argument related to the Ordinance, we observe that

       Byers did not allege in his complaint and does not argue on appeal that the dog

       which struck his motorcycle was a “dangerous dog” under the Ordinance;

       rather, his sole allegation and argument is that the dog was “at-large” as

       prohibited by the Ordinance when it struck his motorcycle. See Appellant’s

       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015        Page 11 of 14
       Appendix at 10. While Byers mentions Paragraph E of Section 3 of the

       Ordinance, which is applicable to persons who own, keep, or harbor a

       “dangerous dog,” he has not alleged or argued that the dog was a dangerous

       dog under the Ordinance. Byers also cites to Paragraph B of Section 3 of the

       Ordinance, which makes it unlawful for an “owner” to permit an animal to be

       at large, and an owner is a person or persons owning or having the care,

       custody, or control of the animal. See Appellant’s Appendix at 134. However,

       the Moredocks designated evidence establishing that they were not persons

       owning or having the care, custody, or control of the dog, nor were they keepers

       of the dog. As a result, Paragraph B of Section 3 of the Ordinance did not

       impose any duty on the Moredocks to confine or otherwise restrain a dog

       owned or in the care of their tenant or the residents of the Property. See Blake,

       274 Ind. at 565, 413 N.E.2d at 563 (“If the landowner is neither the owner nor

       keeper, he has no duty to confine or restrain the animal.”); see also Morehead,

       932 N.E.2d at 1279 (“The undisputed facts are that [the landowner] was neither

       the owner nor the keeper of his tenants’ dog. Thus, as a matter of law, he had

       no duty to confine or restrain the dog.”).


[20]   Moreover, the fact that the Moredocks owned the Property or had entered into

       a lease with Tom did not impose a duty on the Moredocks to ensure that any

       dog on the Property was adequately confined or restrained or otherwise under

       the control of the dog’s owner or keepers. While it may have been foreseeable

       that upon escaping the Property, the dog may run into the Roadway and cause

       an accident, it was not reasonably foreseeable that the dog would in fact escape

       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015   Page 12 of 14
       its confinement or the control of its owner or keepers. See Morehead, 932

       N.E.2d at 1280 (holding that it is not reasonably foreseeable that a dog indeed

       will escape its confinement). As we held in Morehead, “[i]t is not the dog’s mere

       presence on leased property that causes harm,” but rather “it is the owner’s

       failure to adequately confine that dog.” Id. There is generally not a high degree

       of foreseeability that leasing property to an owner or keeper of a dog, even

       where the dog may generally need to be restrained, will result in injury to third

       parties. See id. (concluding that there is not “a high degree of foreseeability that

       leasing property to the owners of vicious dogs will result in injury to third

       parties”).


[21]   Additionally, the fact that Robert placed a metal post in the yard of the

       Property so that his tenants had an additional option or method of confining

       their dog does not render it reasonably foreseeable that the dog’s owner or

       keepers would not in fact adequately restrain the dog or that it would escape its

       confinement or the control of its owner or keepers and run into the Roadway

       and cause injury. See Blake, 274 Ind. at 565, 413 N.E.2d at 563 (holding that

       the responsibility for selecting an adequate method of confinement is upon the

       keeper of an animal and not upon the landowner). As the owners of the

       Property and landlords, the Moredocks were not expected to monitor the

       tenants or residents of the Property so as to ensure that, as dog owners or

       keepers, the tenants or residents did not fail to adequately confine or control

       their dogs. See Morehead, 932 N.E.2d at 1280 (holding that it would be



       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015    Page 13 of 14
       unreasonable to impose a duty on landlords to regulate the tenants’ animals

       where the owners clearly are in the best position to do so).


                                                    Conclusion

[22]   In sum, the provisions of the Ordinance cited by Byers were inapplicable to the

       Moredocks and did not impose any duty on them to confine or restrain a dog in

       the care of the tenant or residents of the Property; the Moredocks were not the

       owners or keepers of the dog that struck Byers’s motorcycle and had no duty to

       confine or control the dog on that basis; and the Moredocks as the owners of

       the Property and landlords did not have a duty to ensure proper or adequate

       confinement or control of the dog, or to monitor the tenant or residents of the

       Property to ensure they properly or adequately confined or controlled the dog.

       Accordingly, summary judgment in favor of the Moredocks and against Byers

       was proper.


[23]   For the foregoing reasons, we affirm the trial court’s entry of summary

       judgment in favor of the Moredocks and against Byers.


[24]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 34A04-1412-CT-560 | May 18, 2015   Page 14 of 14
