                                                                              FILED
                                                                       Dec 27 2017, 8:03 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE –
Rebecca Eimerman                                          COLBY HAYDUK
Zionsville, Indiana                                       Brandy M. Kumfer
                                                          State Farm Litigation Counsel
                                                          Indianapolis, Indiana

                                                          ATTORNEYS FOR APPELLEE –
                                                          TIFFANY STAFFORD
                                                          Leslie B. Pollie
                                                          Scott A. Weathers
                                                          Travis W. Montgomery
                                                          Kopka Pinkus Dolin PC
                                                          Carmel, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael Martin,                                           December 27, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          32A01-1705-CT-974
        v.                                                Appeal from the Hendricks
                                                          Superior Court
Colby Hayduk and Tiffany                                  The Honorable Stephenie D.
Stafford,                                                 LeMay-Luken, Judge
Appellees-Defendants.                                     Trial Court Cause No.
                                                          32D05-1510-CT-129



Najam, Judge.




Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017                    Page 1 of 17
                                         Statement of the Case
[1]   Michael Martin appeals the trial court’s grant of summary judgment for Colby

      Hayduk and Tiffany Stafford on Martin’s complaint, which alleged that

      Hayduk and Stafford had negligently failed to confine and control their dogs

      and that, as a direct result of their negligence, Martin was bitten by their dogs

      and suffered serious bodily injuries while on Hayduk’s property. Martin

      presents a single issue for our review, which we restate as the following two

      issues:


                1.     Whether there are genuine issues of material fact that
                       Hayduk and Stafford were negligent per se when they
                       allegedly violated local ordinances regarding the
                       ownership of dogs.

                2.     Whether, under the common law, there are genuine issues
                       of material fact that Hayduk and Stafford were negligent.


[2]   We reverse and remand for further proceedings.1


                                   Facts and Procedural History
[3]   Hayduk owns a residence in Brownsburg. The house is in a rural neighborhood

      and is bordered on two sides by farmland and on a third side by another

      residence. Hayduk has two dogs and has installed an in-ground electric or




      1
        We held oral argument in this case on November 1, 2017, at Triton Central High School in Fairland,
      Indiana. We thank counsel for their excellent advocacy and extend our appreciation to the faculty, staff, and
      students of Triton Central High School for their hospitality.

      Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017                      Page 2 of 17
      “invisible” fence that is located approximately thirty-five feet inside his property

      line. Hayduk’s dogs wear electric collars and have never wandered beyond the

      electric fence.


[4]   Stafford, Hayduk’s girlfriend, lives in Zionsville with her five dogs. On June

      30, 2015, Stafford was at Hayduk’s residence with all of her dogs and both of

      his dogs. All five of her dogs wore electric collars and had been trained on the

      electric fence.


[5]   On that day, after Hayduk had left his home for work, Martin entered Hayduk’s

      property, parked in Hayduk’s driveway, and walked toward the house. Martin

      wanted to purchase a Volkswagen truck that was parked in the driveway. The

      truck had a logo painted on the tailgate for a business called “Buggy Works.”

      There were no “for sale” signs on the truck, and Martin had no other reason to

      believe that the truck was for sale.


[6]   About fifteen to twenty feet from the front door to the residence, at least five

      dogs approached Martin. The dogs bit and scratched Martin, and, as a result,

      he sustained several injuries. Martin then left for a local hospital, and, while on

      his way, he called Hayduk to inquire about whether the dogs had all had their

      shots. During that phone call, Hayduk told Martin that there were “beware of

      dog” signs on his property. After the phone call, Martin drove past Hayduk’s

      property to look for the signs and to take pictures of the property, and he

      noticed a “beware of dog” sign on the northwest corner of the property and

      another sign behind some foliage on the east side of the property by the


      Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 3 of 17
      driveway, which was Martin’s original point of entry to the property. Martin

      also noticed a sign in a window, but he could not determine what it said.


[7]   On October 2, Martin filed a complaint against Hayduk and Stafford in which

      he alleged that they had negligently failed to confine and control their dogs and

      that, as a result, Martin was bitten and suffered serious bodily injuries. In their

      answers, both Hayduk and Stafford, in relevant part, raised the affirmative

      defense that Martin was at fault in having contributed to his injuries and that he

      had incurred the risk of injury when he entered Hayduk’s property despite the

      “beware of dog” signs.


[8]   Later, during his deposition, Martin discussed his phone call with Hayduk

      regarding the dogs. Martin testified that Hayduk had said multiple times

      “that’s why the signs are there, that’s why the signs are there.” Appellant’s

      App. Vol. II at 118. Martin went on to say: “I think [Hayduk] said, ‘We have

      signs up. You didn’t see them?’ I said I obviously didn’t see them.” Id. at 118-

      19.


[9]   In response to interrogatories regarding whether the dogs had ever bitten others,

      Stafford stated as follows: “In November of 2012, one of Tiffany Stafford’s

      dogs bit her ex-husband’s hand. The incident happened when Michael Stafford

      returned [on] leave from his military tour in Afghanistan. The dog had never

      met Michael Stafford.” Appellant’s App. Vol. II at 203. Stafford further

      responded that she




      Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 4 of 17
               was bitten a few times when she first adopted one of her dogs in
               the summer of 2014. For the first eight months after Tiffany
               Stafford brought the dog home, she did not get along with other
               dogs and would initiate fights. On a few occasions Tiffany
               Stafford stepped in to break up the dogs and got bitten in the
               process.


       Id.


[10]   Hayduk and Stafford filed motions for summary judgment alleging that Martin

       was a trespasser on Hayduk’s property and, therefore, they did not owe a duty

       to Martin other than to refrain from willfully or wantonly injuring him. They

       further argued that, even if they owed a duty to Martin beyond that owed to a

       trespasser, they were not negligent when they kept the dogs confined to the

       property through the use of the electric fence. Hayduk and Stafford also

       asserted that “[a]t the time of the alleged attack, signs were posted at the end of

       the driveway and in the laundry room window to the left of the garage[,] among

       other places.” Id. at 85, 97.


[11]   In response, Martin asserted that there were genuine issues of material fact

       regarding whether Hayduk and Stafford had violated local ordinances when

       they had failed to confine the dogs properly and had kept more dogs on the

       premises than permitted. In addition, Martin asserted that there was a genuine

       issue of material fact as to his status on the land as well as to whether Hayduk

       and Stafford had breached their duty of reasonable care under the

       circumstances. He further claimed that the “beware of dog” signs located on



       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 5 of 17
       the property were covered by foliage. After a hearing, the trial court entered

       summary judgment for Hayduk and Stafford. This appeal ensued.


                                       Discussion and Decision
[12]   Martin contends that the trial court erred when it entered summary judgment

       for Hayduk and Stafford. Our standard of review is clear. The Indiana

       Supreme Court has explained that


               [w]e review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, 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.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alteration and omission

       original to Hughley). As the appellant, Martin has the initial burden on appeal

       to persuade us that the grant of summary judgment was erroneous. Id.

       However, “we carefully assess the trial court’s decision to ensure that he was

       not properly denied his day in court.” Id.


[13]   Our Supreme Court has recently reiterated that “[s]ummary judgment is rarely

       appropriate in negligence cases because they are particularly fact-sensitive and


       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 6 of 17
       are governed by a standard of the objective reasonable person, which is best

       applied by a jury after hearing all of the evidence.” Kramer v. Catholic Charities of

       the Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).

       However, we will affirm the “trial court’s entry of summary judgment if it can

       be sustained on any theory or basis in the record.” DiMaggio v. Rosario, 52

       N.E.3d 896, 904 (Ind. Ct. App. 2016).


[14]   To prevail on his negligence claim, Martin must prove that Hayduk and

       Stafford: 1) owed Martin a duty; 2) breached that duty; and 3) proximately

       caused Martin’s injuries. Goodwin v. Yeakle’s Sports Bar & Grill, Inc. 62 N.E.3d

       384, 386 (Ind. 2016). Here, the parties dispute the nature and extent of the duty

       owed to Martin both under local ordinances and under our common law. The

       parties also dispute whether Hayduk and Stafford breached their duty to

       Martin. We address each argument in turn.


                                      Issue One: Negligence Per Se

[15]   Martin first contends that Hayduk and Stafford were negligent per se when they

       allegedly violated two local ordinances. One of those ordinances limits the

       number of dogs that owners may keep as pets. The other prohibits an owner

       from permitting his animal to be at large.


[16]   The Indiana Supreme Court has held that


               the unexcused violation of a statutory duty 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


       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 7 of 17
               the risk of the type of harm which has occurred as a result of its
               violation.”


       Kho v. Pennington, 875 N.E.2d 208, 212-13 (Ind. 2007) (citing Plesha v. Edmonds

       ex rel. Edmonds, 717 N.E.2d 981, 987 (Ind. Ct. App. 1999)). Further:


               [w]hen this court construes a municipal ordinance, we apply the
               rules applicable to statutory construction. City of Jeffersonville v.
               Hallmark at Jeffersonville, L.P., 937 N.E.2d 402, 406 (Ind. Ct. App.
               2010) (citing City of Indianapolis v. Campbell, 792 N.E.2d 620, 624
               (Ind. Ct. App. 2003)), trans. denied. The primary rule of statutory
               construction is to ascertain and give effect to the intent of the
               statute’s drafters. Id. (citation omitted). The best evidence of
               that intent is the language of the statute, and all words must be
               given their plain and ordinary meaning unless otherwise
               indicated by the statute. Id. (citation omitted).


       Mertz v. City of Greenwood, 985 N.E.2d 1116, 1121-22 (Ind. Ct. App. 2013).


                                    Four-Dog Maximum Ordinance

[17]   Martin first asserts that Hayduk and Stafford were negligent per se when they

       violated a local ordinance that limits the number of dogs that they may keep as

       pets. Section 90.04 of Title IX of the Code of Ordinances for the Town of

       Brownsburg states that


               [i]t is illegal and unlawful for any person . . . to keep any of the
               following on any premises in the Town in numbers consisting of
               more than a combined total of eight indoor and/or outdoor pets,
               and limited further to a maximum of four dogs . . . , six months
               of age or older, kept for the purposes of personal enjoyment as
               pets, all of which have been sterilized (spayed or neutered) or
               more than a combined total of three dogs . . . , six months of age

       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 8 of 17
               or older, kept for the purposes of personal enjoyment as pets, that
               have not been sterilized.


[18]   Martin contends that Stafford and Hayduk violated that ordinance when they

       allowed seven dogs on the property at the time Martin was injured. However,

       it is apparent from the plain language of the ordinance that the risk of harm that

       the ordinance seeks to prevent is a risk to public health, not a risk of personal

       injuries caused by the animals. The ordinance limits the number of pets that

       can be kept on the premises “for the purposes of personal enjoyment,” which is

       to prevent a pet owner from accumulating more pets than he can care for

       properly. Further, because the ordinance is more restrictive based on the

       reproductive capacities of pets kept on the premises, its purpose is also to

       control the animal population, which is a public health concern. In any event,

       there is nothing in the ordinance to suggest that it is intended to protect against

       the type of harm Martin sustained, and Martin has not shown that Hayduk and

       Stafford were negligent per se by violating this ordinance. See Kho, 875 N.E.2d

       at 212-13.


                                             At-Large Ordinance

[19]   Martin next contends that Hayduk and Stafford violated a town ordinance that

       prohibits the owner of an animal from permitting that animal to be at large.

       Section 90.05 of Title IX of the Code of Ordinances for the Town of

       Brownsburg states that “[n]o owner of any animal, licensed or unlicensed, shall

       permit the animal to be at large.” Section 90.02 defines “at large” as



       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 9 of 17
               [a]ny animal, licensed or unlicensed, found off the premises of its
               owner and not under the control of a competent person . . . or on a
               leash or “at heel” beside a competent person and obedient to that
               person’s command.


       (Emphasis added.)


[20]   Martin contends that Stafford’s dogs were “at large” and off the premises, in

       violation of that ordinance, because they were found in Brownsburg instead of

       at Stafford’s home in Zionsville. He further contends that there “is no evidence

       that at any time any dogs which were maintained on the property were under

       the control of a competent person, restrained within a motor vehicle . . . on a

       leash[,] or ‘at heel’ beside a competent person and obedient to that person’s

       command.” Appellant’s Br. at 11.


[21]   But the plain language of this ordinance indicates that its purpose is to prevent

       dogs from roaming freely. Here, the dogs were not roaming freely, but Hayduk

       and Stafford had successfully confined the dogs to Hayduk’s property with the

       electric fence. As such, the dogs were not “at large” but were under the control

       of a competent person. Martin has not shown that Hayduk and Stafford were

       negligent per se with respect to either of the local ordinances.


                               Issue Two: Common Law Negligence

[22]   Martin next contends that the trial court erred when it granted summary

       judgment in favor of Hayduk and Stafford because genuine issues of material

       fact exist as to whether Hayduk and Stafford were negligent. Specifically,

       Martin contends that genuine issues of material fact exist regarding the nature
       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 10 of 17
       and the extent of the duty Hayduk and Stafford owed to Martin and whether

       they breached that duty.


                                                        Duty

[23]   Martin asserts that the trial court erred when it granted summary judgment in

       favor of Hayduk and Stafford because a genuine issue of material fact exists as

       to whether Martin was an invitee or a trespasser. However, in dog-bite cases,

       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.” Plesha, 717 N.E.2d at 987. The standard of care

       owed by a dog owner to a third party is simply a duty of reasonable care. Id.

       Thus, whether Martin was an invitee, licensee, or trespasser on the property is

       not a material question in this appeal. Rather, it is settled that, as a matter of

       law, Hayduk and Stafford owed Martin the duty of reasonable care. Id.


                                                 Breach of Duty

                                                  Electric Fence

[24]   Martin next contends that the designated evidence establishes a genuine issue of

       material fact regarding whether Hayduk and Stafford breached their duty of

       reasonable care under the circumstances. In Indiana,


               [t]he 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

       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 11 of 17
               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 v. Whitesell-Sherman, 796 N.E.2d 271, 275 (Ind. 2003). “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.” Ross, 619 N.E.2d at 914.


[25]   In their motions for summary judgment, Hayduk and Stafford each asserted

       that they did not breach their duty of care to Martin because they had an

       electric fence around the property and they had trained all of the dogs on the

       fence. On appeal, Martin asserts that the designated evidence shows that some

       of the dogs had a known vicious or dangerous propensity and, as such, the use

       of the electric fence did not in itself satisfy Hayduk and Stafford’s duty of care

       to others on the premises.


[26]   This court has previously addressed what measures a dog owner must take to

       fulfill his duty of reasonable care where a dog has known dangerous

       propensities. In Ross, the defendant, Lowe, confined his dog either to his house

       or back yard, which contained a six-foot-high wooden fence. A postal worker

       noticed that Lowe’s dog became very agitated when the postal worker

       approached the house and the dog would jump up and down and would strain

       against the window screen or the fence. One day, a meter reader arrived at

       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 12 of 17
       Lowe’s home to read the meter when Lowe had left his dog in the care of his

       twelve-year-old daughter. The meter reader used a hand-held computer that

       warned him of any problems at a given house. Lowe’s house was coded as

       “having a ‘bad dog.’” Id. at 913. As such, the meter reader asked Lowe’s

       daughter to confine the dog to the house, and he then entered the back yard.

       The dog escaped through the storm door into the back yard, jumped on the

       meter reader, and knocked him down. The meter reader sustained a dislocated

       shoulder and other injuries, and he sued Lowe. Following a judgment on the

       evidence, the Indiana Supreme Court held that confining a dog behind a fence

       is not, as a matter of law, necessarily sufficient to establish that a dog owner

       exercised reasonable care in controlling the dog. Id. at 915.


[27]   Here, Martin asserts that the designated evidence shows a genuine issue of

       material fact regarding whether the dogs had vicious or dangerous propensities.

       We must agree. It is possible for the trier of fact to conclude from the

       designated evidence that Stafford knew of the vicious or dangerous propensities

       of one or more of her dogs as her dog had attacked her ex-husband, had bitten

       her a few times, and had bitten other dogs. Here, a reasonable fact-finder could

       conclude that one or more of Stafford’s dogs were known for their vicious or

       dangerous propensities and that confining the dogs to the property using only

       an electric fence was not sufficient under the circumstances. Thus, a reasonable

       fact-finder could conclude that Hayduk and Stafford breached their duty of

       reasonable care under the circumstances when they let the dogs roam freely on

       the property despite those propensities. See, e.g., id.


       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 13 of 17
                                                   Incurred Risk

[28]   In their motions for summary judgment in the trial court, Hayduk and Stafford

       asserted that Martin incurred the risk of injury when he entered the property

       despite the “beware of dog” signs.2 We note that, since Indiana’s adoption of

       the Comparative Fault Act, there has been some question about the application

       of the doctrine of incurred risk. Specifically, there have been questions about

       whether that doctrine wholly bars a plaintiff’s recovery by negating a duty owed

       to the plaintiff or whether it instead goes to the allocation of fault.


[29]   The Indiana Supreme Court provided clarity on this issue in Pfenning v.

       Lineman, 947 N.E.2d 392 (Ind. 2011). In Pfenning, the Court held that


               [u]nder Indiana’s Comparative Fault Act, a plaintiff’s recovery
               will be diminished or precluded depending upon the degree of the
               plaintiff’s own fault. See Ind. Code §§ 34-51-2-5, -6. Such fault
               includes “any act or omission that is negligent, willful, wanton,
               reckless, or intentional toward the person or property of others.
               The term also includes unreasonable assumption of risk not
               constituting an enforceable express consent, incurred risk, and
               unreasonable failure to avoid an injury or to mitigate damages.”
               Ind. Code § 34-6-2-45(b).


       Id. at 399-400 (emphasis added). Thus, to resolve the issue of liability for a tort

       in Indiana, “a foremost consideration must be the Indiana General Assembly’s



       2
         While incurred risk was not briefed by the parties on appeal, this issue was raised in the motion for
       summary judgment in the trial court, the court entered a general judgment in favor of Hayduk and Stafford,
       and we will review the record on appeal to determine if the grant of summary judgment can be sustained on
       any theory or basis in the record. DiMaggio, 52 N.E.3d at 904. We will also review the record on appeal to
       ensure that the nonmoving party was not denied his day in court. Hughley, 15 N.E.3d at 1003.

       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017                   Page 14 of 17
       enactment of a comparative fault system and its explicit direction that ‘fault’

       includes assumption of risk and incurred risk.” Id. at 403 (quoting I.C. § 34-6-2-

       45(b)).


[30]   The Pfenning Court further stated that “[i]ncurred risk . . . cannot be a basis to

       find the absence of a duty on the part of the alleged tortfeasor.” Id. at 400.

       However, “‘[w]hile a plaintiff’s conduct constituting incurred risk thus may not

       support finding a lack of duty, such conduct is not precluded from

       consideration in determining breach of duty.’” Id. (quoting Smith, 796 N.E.2d

       at 245). A “[b]reach of duty usually involves an evaluation of reasonableness

       and thus is usually a question to be determined by the finder of fact in

       negligence cases.” Id. at 403.


[31]   In the present case, the question of incurred risk is, in effect, a question of

       whether and, if so, to what extent, Martin had any contributory fault when he

       entered the property notwithstanding the “beware of dog” signs. “The concept

       of incurred risk (and its analogue, assumption of risk) is centered on a plaintiff’s

       ‘mental state of venturousness’ and ‘demands a subjective analysis of actual

       knowledge.’” Id. at 400 (quoting Smith, 796 N.E.2d at 244) (emphasis added).

       Thus, to determine whether Martin incurred the risk of his injuries, we must

       assess whether the designated evidence shows that Martin actually knew that

       dogs were on the premises when he entered.


[32]   It is undisputed that there were at least three “beware of dog” signs on the

       property. However, during his deposition, Martin testified that, “I think


       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 15 of 17
       [Hayduk] said, ‘We have signs up. You didn’t see them?’ I said I obviously

       didn’t see them.” Appellant’s App. Vol. 2 at 119. That is, Martin’s deposition

       testimony, which was within the designated evidence, creates a genuine issue of

       material fact with respect to whether he had actual knowledge that there were

       dogs on the property when he entered. And our Supreme Court has made clear

       that self-serving testimony, by itself, can be sufficient to defeat summary

       judgment. Hughley, 15 N.E.3d at 1004.


[33]   Martin’s deposition testimony notwithstanding, it is undisputed that Martin

       entered the property via the driveway. A photograph of the “beware of dog”

       sign at the end of the driveway appears to show that the sign at that location

       was obscured by foliage. Appellant’s App. Vol. II at 169. The presence of a

       warning sign covered with foliage would defeat the purpose of the sign, and a

       trier of fact could conclude that a person entering the property would not have

       had actual knowledge of the risk because the sign was obscured.


[34]   While there were other signs, the designated evidence does not establish as a

       matter of law that Martin observed them. Thus, there is a genuine issue of

       material fact concerning whether Martin had actual knowledge of the risk of the

       dogs when he entered the property. We note, however, that the designated

       evidence does show that Martin saw the signs when he returned to the property.

       It is for a jury to decide whether, considering all of the evidence, Martin’s

       testimony that he did not observe the signs before he entered the property is

       credible. The jury may conclude that a reasonable person would have seen the

       signs and, as such, that Martin’s assertion that he did not see the signs lacks

       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 16 of 17
       credibility. These questions of fact cannot be answered as a matter of law on

       summary judgment.


                                                   Conclusion

[35]   We reverse the trial court’s entry of summary judgment for Hayduk and

       Stafford. We hold that Martin has not shown that Hayduk and Stafford were

       negligent per se for violating the Brownsburg ordinances, but there are genuine

       issues of material fact regarding whether Hayduk and Stafford breached their

       duty to Martin and whether Martin incurred the risk of injury. Thus, we

       reverse the trial court’s entry of summary judgment for Hayduk and Stafford

       and remand for further proceedings.


[36]   Reversed and remanded for further proceedings.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 32A01-1705-CT-974 | December 27, 2017   Page 17 of 17
