MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jul 31 2017, 6:52 am
court except for the purpose of establishing
                                                                          CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Michael E. Simmons                                        GARDNER
William D. Beyers                                         Robert S. Rifkin
Hume Smith Geddes Green &                                 Rifkin, Blanck & Rubenstein, P.C.
Simmons, LLP                                              Carmel, Indiana
Indianapolis, Indiana
                                                          ATTORNEY FOR APPELLEES
                                                          LOGHMANI & AKHAVAN
                                                          Robert A. Durham
                                                          State Farm Litigation Counsel
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Herbert,                                          July 31, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          49A02-1702-CT-391
        v.                                                Appeal from the
                                                          Marion Superior Court
Jacob Gardner, Ziaollah                                   The Honorable
Loghmani, and Kamran                                      James B. Osborn, Judge
Akhavan,                                                  Trial Court Cause No.
Appellees-Defendants.                                     49D14-1601-CT-3207




Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017           Page 1 of 9
[1]   Jeffrey Herbert (“Herbert”) appeals the trial court’s orders granting summary

      judgment in favor of Jacob Gardner (“Gardner”) and Ziaollah Loghmani

      (“Loghmani”) and Kamran Akhavan (“Akhavan”) (together, “Landlords”).

      Herbert raises the following restated issues for our review:


              I.       Whether the trial court erred in granting summary
                       judgment in favor of Gardner despite certain Marion
                       County ordinances that Herbert contends are designed to
                       protect the public from dog attacks and dogs at large; and


              II.      Whether the trial court erred in granting summary
                       judgment in favor of Landlords because Herbert claims
                       that Landlords failed to properly maintain the fence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In October 2015, Landlords owned a rental property at 945 East Morris Street

      in Marion County, Indiana. At that time, Landlords had been renting the

      property to Gardner for approximately seven or eight years. The property had a

      front yard and a backyard, which was surrounded by a chain link fence that was

      approximately three and a half to four feet high with latched access gates to

      both the front and back yards.


[4]   Gardner owned a dog named Chewbacca (“Chewy”), and Landlords were

      aware that Gardner owned Chewy. Chewy was a neutered, fully vaccinated,

      male, tan-colored, mixed breed dog with white spots on his chest and feet

      typical of the boxer breed. In October 2015, Chewy was about two years old

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 2 of 9
      and weighed between thirty-five and forty pounds. Chewy occasionally barked

      from inside the fence at people who walked or biked past the property, but

      never exhibited “vicious or aggressive behavior toward people” and had never

      bitten or attacked anyone. Appellant’s App. at 66. No one had ever complained

      to Gardner that Chewy had bitten or attacked them or shown any aggressive

      behavior toward them. Id. Gardner had never seen Chewy act aggressively

      toward people and had no reason to believe that Chewy had any vicious

      tendencies. Id.


[5]   Loghmani had met Chewy on prior occasions and found Chewy to be friendly

      and never exhibited “dangerous propensities.” Id. at 32. Landlords had never

      received any complaints related to Chewy. While Gardner was renting the

      property, Loghmani would drive by the rental property every two to three

      months to make sure the lawn was mowed, but did not enter the property

      without notice to Gardner. Akhavan lives in China and has lived there for

      approximately ten years.


[6]   On October 18, 2015, Herbert was riding his bike in the alley adjacent to the

      property. Chewy was in the yard and ran along the fence line barking at

      Herbert as he was riding in the alley toward the street. When Herbert reached

      the street, the dog had left the yard and “attacked” Herbert while he was on his

      bike in the street. Id. at 48. As a result, Herbert fell off his bike and broke his

      leg.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 3 of 9
[7]   On the date of the incident, the fence and gates at the property were in good

      condition. The fencepost at the northwest corner of the fenced yard was bent;

      however, the bottom of the chain link fence extending both east and west of the

      bent post was no more than a half an inch off the ground. Id. at 68. Gardner

      had reported the damaged post to Landlords shortly after it happened. To

      Gardner’s knowledge, Chewy had never escaped the fenced yard, and because

      he lived on a busy street, Gardner kept Chewy on a leash when he walked him

      outside the fenced yard. On the morning of October 18, Gardner left for work

      at approximately 9:00 a.m., and at that time, Chewy was in the residence, the

      gates to the fenced yard were closed and latched, and Gardner’s roommate was

      inside the residence. When Gardner arrived home from work that afternoon

      between 3:30 p.m. and 4:00 p.m., Chewy was inside the residence.


[8]   Herbert filed a complaint for damages against Gardner, Loghmani, and

      Akhavan, alleging that Chewy had escaped from the property Gardner rented

      from Landlords and that Chewy had caused Herbert to have an accident on his

      bicycle which resulted in injury to Herbert. Landlords and Gardner each filed a

      motion for summary judgment. Herbert filed a motion for partial summary

      judgment against Gardner. A hearing was held on the motions, and on

      February 2, 2017, the trial court granted both Landlords’ and Gardner’s

      motions for summary judgment. Herbert now appeals.


                                     Discussion and Decision
[9]   Herbert argues that the trial court erred in granting summary judgment in favor

      of Gardner and in favor of Landlords. When reviewing the grant of summary
      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 4 of 9
       judgment, our standard of review is the same as that of the trial court. FLM,

       LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citing

       Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct.

       App. 2005)), trans. denied. We stand in the shoes of the trial court and apply a

       de novo standard of review. Id. (citing Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d

       690, 695 (Ind. Ct. App. 2006)). Our review of a summary judgment motion is

       limited to those materials designated to the trial court. Ind. Trial Rule 56(H);

       Robson v. Tex. E. Corp., 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied.

       Summary judgment is appropriate only where the designated evidence shows

       there are no genuine issues of material fact and the moving party is entitled to

       judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a

       fact is “material” if it bears on the ultimate resolution of relevant issues. FLM,

       973 N.E.2d at 1173. We view the pleadings and designated materials in the

       light most favorable to the non-moving party. Id. Additionally, all facts and

       reasonable inferences from those facts are construed in favor of the non-moving

       party. Id. (citing Troxel Equip. Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40

       (Ind. Ct. App. 2005), trans. denied).


[10]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. FLM, 973

       N.E.2d at 1173. We will affirm upon any theory or basis supported by the

       designated materials. Id. When a trial court grants summary judgment, we




       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 5 of 9
       carefully scrutinize that determination to ensure that a party was not improperly

       prevented from having his or her day in court. Id.


                                                  I.      Gardner
[11]   Herbert first contends that the trial court erred in granting summary judgment

       in favor of Gardner because Gardner did not keep Chewy from escaping or

       attacking Herbert as required by certain Marion County ordinances. Herbert

       asserts that, although Gardner attempted to avoid responsibility under common

       law analysis, such analysis is not necessary because there are two specific

       Marion County ordinances that apply and state that, if a dog escapes, the owner

       is responsible for injuries caused by the dog. Herbert alleges that these

       ordinances impose a duty on Gardner to make sure that Chewy does not injure

       anyone and to make sure that Chewy does not escape the property. He

       maintains that the ordinances, therefore, support his claim that he can recover

       damages from Gardner even if Chewy did not show prior dangerous

       propensities.


[12]   Under Marion County Local Ordinance section 531-102(a), “an owner or

       keeper of an animal commits a violation of the Code if that animal is at large in

       the city.” Under Marion County Local Ordinance 531-109(a), “an owner or

       keeper of an animal commits a violation of the Code if that animal attacks or

       injures a person who did not provoke the animal prior to the attack.” However,

       these Marion County ordinances cited by Herbert do not specifically provide for

       a private right of action to allow a lawsuit filed by a private individual to

       enforce the ordinances. Instead, when a violation of the ordinances is found by
       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 6 of 9
       the city, a fine of up to $500 may be imposed or, under certain circumstances, a

       court may order the animal to be forfeited or destroyed. Herbert has not cited

       to any cases that hold that a violation of a city ordinance establishes negligence

       per se and allows civil damages. Further, there is no evidence that Gardner was

       even cited by the City of Indianapolis or Marion County for a violation of any

       ordinance.


[13]   In Indiana, the common law presumes that all dogs, regardless of breed or size,

       are harmless. Cook v. Whitsell-Sherman, 796 N.E.2d 271, 275 (Ind. 2003) (citing

       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. 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. When the owner or keeper has such knowledge, he is obligated to use

       reasonable care to prevent the animal from causing injury or damage. 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. Cook, 796 N.E.2d

       at 275. Therefore, 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.


[14]   Here, no evidence was presented that Chewy had known vicious or dangerous

       propensities or that he had ever shown aggressive or hostile behaviors toward

       people. The designated evidence shows that Gardner had no knowledge that

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 7 of 9
       Chewy possessed any dangerous propensities and had not received any

       complaints about Chewy’s behavior. Gardner kept Chewy inside of a fenced

       yard and did not knowingly allow Chewy to leave the yard unattended. We

       conclude that, based on the designated evidence, Gardner was not aware of any

       dangerous propensities of Chewy. Summary judgement was properly granted

       in favor of Gardner.


                                                II.      Landlords
[15]   Herbert next argues that the trial court erred when it granted summary

       judgment in favor of Landlords because Landlords failed to properly maintain

       the fence, which allowed Chewy to escape and attack Herbert. Herbert

       contends that Landlords had a duty to maintain the fence and that the fence

       post near the alley was “crushed” and could have allowed Chewy to escape

       from the yard. Appellant’s Br. at 9. He also claims that, because there was

       damage to the fence and Landlords knew that Chewy was on the property,

       Chewy was a condition on the property that could foreseeably escape and injure

       a passerby. Herbert, therefore, asserts that a factual dispute exists as to whether

       Landlords’ failure to properly maintain the fence allowed Chewy to escape, and

       summary judgement was not proper.


[16]   Although Herbert asserts that Chewy was a dangerous condition on Landlords’

       property that could foreseeably escape and create a duty under premises

       liability, such an argument has previously been rejected by this court in

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

       Morehead, the plaintiff argued that the tenant’s dog was a dangerous condition
       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 8 of 9
       under premises liability. Id. at 1277. This court stated that a “dangerous

       condition” is defined as a “property defect creating a substantial risk of injury

       when the property is used in a reasonably foreseeable manner.” Id. at 1278.

       This court, therefore, held that the tenant’s dog was not a property defect. Id. at

       1279. Additionally, in McCraney v. Gibson, 952 N.E.2d 284 (Ind. Ct. App.

       2011), trans. denied, this court again rejected the plaintiff’s argument that the

       landlord should be held liable for the acts of a tenant’s dog under the theory of

       premises liability. Id. at 289. We, therefore, reject Herbert’s contention that

       Chewy was a property defect and that the theory of premises liability should be

       applied.


[17]   “[I]n order to prevail against a landowner for the acts of a tenant’s dog, the

       plaintiff must ‘demonstrate both that the landowner [ ] retained control over the

       property and had actual knowledge that the [dog] had dangerous propensities.’”

       Id. at 287 (quoting Morehead, 932 N.E.2d at 1276). The absence of either

       component will result in a finding for the landowner. Id. Here, there is no

       evidence in the record that Landlords knew that Chewy possessed any violent

       propensities. Because Landlords need only prove the absence of one of the

       prongs of the test, we find that they were entitled to summary judgment as a

       matter of a law. The trial court did not err in entering summary judgment in

       favor of Landlords.


[18]   Affirmed.


[19]   Mathias, J., and Altice, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-391 | July 31, 2017   Page 9 of 9
