                                                                                Jun 05 2015, 11:58 am




      ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEES
      David F. Hurley                                            Mark D. Gerth
      Hurley & Hurley, PC                                        Jeffrey D. Hawkins
      Indianapolis, Indiana                                      Michael Wroblewski
                                                                 Kightlinger & Gray, LLP
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jake Gruber, Jill Sherman, &                               June 5, 2015
      Jake Gruber b/n/f Jill Sherman,                            Court of Appeals Case No.
                                                                 49A02-1410-CT-713
      Appellants-Plaintiffs,
                                                                 Appeal from the Marion Superior
              v.                                                 Court
                                                                 The Honorable Heather A. Welch,
                                                                 Judge
      YMCA of Greater Indianapolis,
      Ruth Lilly YMCA Outdoor                                    Case No. 49D06-1304-CT-14317
      Center, & Flat Rock River
      YMCA Resident Camp,
      Appellees-Defendants.




      Vaidik, Chief Judge.



                                            Case Summary
[1]   An eleven-year-old boy was at Flat Rock River YMCA camp when a pig—

      which had never injured anyone or exhibited any dangerous propensities—
      Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015                            Page 1 of 9
      stuck its head between the bars of its pen and grabbed the boy’s hand, causing

      injuries. The boy and his mother sued the camp, and the camp filed a motion

      for summary judgment. The trial court granted summary judgment in favor of

      the camp.


[2]   On appeal, the boy and his mother acknowledge the general rule that owners of

      domestic animals are liable only if the owner knows or has reason to know that

      the animal has dangerous propensities. Nevertheless, they ask us to change the

      standard for liability of owners of domestic animals to that of strict liability

      when the animal is not a cat or dog. Because Indiana Supreme Court precedent

      is clear that this general rule applies to all domestic animals—and not just cats

      and dogs—we decline their invitation to alter the standard. We therefore affirm

      the trial court’s entry of summary judgment in favor of the camp.



                             Facts and Procedural History
[3]   On April 19, 2011, eleven-year-old Jake Gruber was a participant at Flat Rock

      River YMCA Camp in St. Paul, Indiana. Jake’s mother, Jill Sherman, was a

      chaperone. Marcus Loidolt, who worked as a naturalist at the camp, owned a

      pig that lived on YMCA’s premises nine months of the year. Marcus had

      owned the pig for six years, and the pig had never injured anyone or exhibited

      any dangerous propensities. In fact, the pig was regularly allowed to roam

      freely on YMCA’s premises, and there had never been an incident.




      Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015       Page 2 of 9
[4]   On April 19, Marcus took a group of twelve children, including Jake, into the

      pig’s pen. The pen had three bars, but the pig could stick its nose through the

      bars. While inside the pen, Marcus dumped food out of a bucket so the

      children could watch the pig eat and pet it. After the pig ate, Marcus led the

      children out of the pen and locked the gate. Some of the children, including

      Jake, continued to watch the pig from outside the pen while Marcus was still

      inside the pen with the gate locked. While Jake was less than an arm’s length

      away from the pen, the pig lunged at Jake, stuck its head between the bars, and

      “grabb[ed]” Jake’s hand. Appellees’ App. p. 32 (the plaintiffs’ complaint).

      When the pig lunged at Jake, he was not attempting to feed or pet the pig, and

      the pig’s feeding bowl was not near him. The pig did not show any signs of

      agitation or aggression on April 19.


[5]   Jake was taken to the emergency room at Major Hospital in Shelbyville,

      Indiana. His hand was x-rayed, he was prescribed antibiotics, and he was told

      to follow up with his doctor.


[6]   Nearly two years later, Jake and his mother (collectively, “the plaintiffs”) filed a

      complaint against YMCA of Greater Indianapolis, Ruth Lilly YMCA Outdoor

      Center, and Flat Rock River YMCA Resident Camp (collectively, “the YMCA

      defendants”). They alleged that the “attack of the pig was the result of the

      negligence and carelessness of the Defendants” and that as a result of the

      attack, Jake “suffered and incurred medical expenses, pain and suffering, and

      other damages[,] all of which may continue in the future.” Id. at 6. They also

      alleged that the YMCA defendants “knew or should have known that the pig

      Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015     Page 3 of 9
      had dangerous propensities and knew or should have known of the pig’s natural

      propensities.” Id.


[7]   The YMCA defendants filed a motion for summary judgment. In support of

      their motion, the YMCA defendants designated the following evidence: (1) the

      plaintiffs’ complaint; (2) an affidavit from the pig’s owner, Marcus; and (3) the

      plaintiffs’ answers to their interrogatories. Id. at 3. The plaintiffs filed a

      response to the YMCA defendants’ motion for summary judgment and

      designated their (1) complaint and (2) interrogatory answers.1 Id. at 27. A

      hearing was held. In September 2014, the trial court entered an extensive order

      granting summary judgment in favor of the YMCA defendants. The order

      provides, in part:

              21. [The plaintiffs argue] that a genuine issue of material fact exists as
              to whether the animal at issue is domesticated. However, Indiana
              Code § 15-17-2-26 defines a domestic animal as “an animal that is not
              wild,” and specifically includes swine. This Court finds, and [the
              plaintiffs] later concede[d] at [the summary-judgment hearing], that
              the pig at issue is a domesticated animal.
              22. In Forrest v. Gilley, 570 N.E.2d 934, 935 (Ind. Ct. App. 1991), the
              Indiana Court of Appeals held that the 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. . . . If an individual animal lacks dangerous propensities,
              “the rule is simply that the owner of a domestic animal is bound to




      1
        The only items in Appellants’ Appendix are the CCS and the trial court’s order granting summary judgment
      in favor of the YMCA defendants. Appellees then filed their own appendix in order to include their
      designation of evidence and other documents, including the plaintiffs’ response to their motion for summary
      judgment (which included the plaintiffs’ designation of evidence).

      Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015                          Page 4 of 9
              know the natural propensities of the particular class of animals to
              which it belongs.” Id. . . .
              23. This Court finds that there is no genuine issue of material fact as to
              [the YMCA defendants’] lack of actual knowledge of the pig’s
              dangerous propensities. The record shows that [the YMCA
              defendants] were unaware of the pig’s dangerous propensities—they
              had never received any complaints or had any previous incidents with
              the pig at issue. Furthermore, [the plaintiffs] have failed to present any
              evidence that [the YMCA defendants] had actual knowledge of the
              dangerous or vicious propensities of the animal.
              24. In regards to [the YMCA defendants’] constructive knowledge of
              the pig’s dangerous propensities, [the plaintiffs argue] that [the YMCA
              defendants] have failed to address the natural propensities of the class
              of animal that the pig belongs to and, therefore, [a] genuine issue of
              material fact exists as to whether the precautions taken were
              reasonable. . . . Here, [the plaintiffs have] not only failed to allege or
              demonstrate any dangerous propensity on [the] part of the animal, but
              [they have] also failed to allege or demonstrate that the injuries
              stemmed from a dangerous propensity common to the breed of swine
              the pig belongs to, such as the propensity to bite. . . . [T]his Court
              finds that there is no genuine issue of material fact as to [the YMCA
              defendants’] lack of constructive knowledge of the pig’s dangerous
              propensities.
      Appellants’ App. p. 12-14 (citation omitted). Accordingly, the trial court

      entered summary judgment in favor of the YMCA defendants.


[8]   The plaintiffs now appeal.



                                  Discussion and Decision
[9]   The plaintiffs contend that the trial court erred in entering summary judgment

      in favor of the YMCA defendants. We review an order for summary judgment

      de novo, which is the same standard of review applied by the trial court. Ind.

      Restorative Dentistry, P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind.
      Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015               Page 5 of 9
       2015). The moving party must “affirmatively negate an opponent’s claim” by

       demonstrating that the designated evidence raises no genuine issue of material

       fact and that the moving party is entitled to judgment as a matter of law. Id.

       (quotation omitted). The burden then shifts to the nonmoving party to

       demonstrate a genuine issue of material fact. Id. In reviewing the record, we

       construe all reasonable inferences in favor of the nonmoving party. Id.

       “Summary judgment is inappropriate when genuine factual issues persist—that

       is, when the designated evidence ‘support[s] conflicting reasonable inferences.’”

       Id. (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).


[10]   The Indiana Supreme Court addressed a dog owner’s liability for injuries that

       his mixed-breed sheepdog—which had displayed no vicious tendencies in the

       past—caused to a passerby in Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d

       1255 (Ind. 2003). Our Supreme Court set forth the law on the liability of

       owners of domestic animals as follows:

               When wild animals are kept as pets, an owner is liable for injuries
               caused by the animal. This is so even if the owner had no prior
               knowledge of the animal’s propensity to cause harm, and even if the
               owner has exercised the utmost care in preventing harm. In essence,
               strict liability is imposed on owners of wild animals. Owners of domestic
               animals may also 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. Klenberg v. Russell, 125 Ind. 531, 25 N.E. 596, 597 (1890)
               (“[T]he owners of creatures which, as a species, are harmless and
               domesticated, and are kept for convenience or use, such as dogs . . .
               are not liable for injuries willfully committed by them unless he is
               proved to have had notice of the inclination of the particular animals
               complained of to commit such injuries.”). As with wild animals this
               liability also attaches regardless of the amount of care exercised by the
               owner. However, unlike with wild animals, when the owner of a dog
       Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015                 Page 6 of 9
                has knowledge of its dangerous propensities, “[the] rules of liability are
                based upon negligence and not strict liability.” . . .
                In certain instances, a cause of action in negligence can survive
                without the owner’s actual knowledge of the animal’s dangerous
                propensities. Indeed, such knowledge may even be constructive.
                Nonetheless, when an owner does not know of his animal’s dangerous
                propensities, the rule is not that the jury may infer or impute such
                knowledge. Rather, “the rule is that the owner is bound to know the
                natural tendencies of the particular class of animals to which [the] dog
                belongs.” If the propensities of the class to which the dog belongs are
                the kind which one might reasonably expect would cause injury, then
                the owner must use reasonable care to prevent injuries from occurring.
       Id. at 1259 (first emphasis added, quotations and citations omitted). The Court

       concluded that because there was no evidence that the owner had any

       knowledge that his dog exhibited dangerous or vicious propensities and there

       was no evidence that the breed to which the dog belonged exhibited dangerous

       or vicious propensities, the jury could not infer that the owner knew that his

       dog was dangerous or vicious. Id. at 1260.2


[11]   Here, the plaintiffs concede that pigs are domestic animals and that the general

       rule is that owners of domestic animals are liable for injuries caused by the

       animal only if the owner knows or has reason to know that the animal has

       dangerous propensities. See Appellant’s Br. p. 5 (citing Ind. Code § 15-17-2-26

       & Forrest v. Gilley, 570 N.E.2d 934 (Ind. Ct. App 1991), reh’g denied, trans.




       2
         The plaintiffs cite the Indiana Supreme Court’s opinion in Cook v. Whitsell-Sherman, 796 N.E.2d 271 (Ind.
       2003). However, the issue in that case was the liability of owners whose dogs bite mail carriers and certain
       other public servants. The issue in Cook was governed by a statute that “was intended to alter th[e] common[-
       ]law framework if the victim is a letter carrier” by removing the presumption that a dog is harmless unless it
       acts otherwise. Id. at 275.

       Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015                            Page 7 of 9
       denied). The trial court found that “[the plaintiffs have] not only failed to allege

       or demonstrate any dangerous propensity on [the] part of the animal, but [they

       have] also failed to allege or demonstrate that the injuries stemmed from a

       dangerous propensity common to the breed of swine the pig belongs to, such as

       the propensity to bite.” Appellants’ App. p. 13. Indeed, the evidence

       designated at summary judgment shows that Marcus had owned the pig for six

       years, and the pig had never injured anyone or exhibited any dangerous

       propensities, including on the day in question. And the plaintiffs designated no

       evidence that the particular breed to which the pig belonged has dangerous

       propensities.


[12]   Nevertheless, the plaintiffs argue that pigs, although domestic animals, “can’t

       be compared to a dog or cat which provide companionship as someone’s pet.”

       Appellants’ Br. p. 6. As such, they ask us “to impose a strict[-]liability standard

       when the owner of a domesticated animal exposes someone to an abnormal

       risk.” Id. at 6. They claim that without “such a standard, people like [them]

       would have no recourse for potential serious injuries sustained when they are

       exposed to an abnormal risk by a domesticated animal.” Id. We, however,

       decline the plaintiffs’ invitation to impose a strict-liability standard on owners of

       domestic animals that are not cats or dogs. This is because our Supreme Court

       has made clear that this rule applies to all domestic animals, not just cats and

       dogs. See Poznanski, 788 N.E.2d at 1259 (“Owners of domestic animals may also

       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.” (emphases added));


       Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015      Page 8 of 9
       see also Einhorn v. Johnson, 996 N.E.2d 823, 831 (Ind. Ct. App. 2013) (noting

       that horses are domestic animals and that owners of domestic animals are not

       liable for injuries caused by the animal unless the animal had dangerous

       propensities known, or which should have been known, to the owner), reh’g

       denied, trans. denied. Because the plaintiffs have put forth no convincing reason

       to impose strict liability on owners of domestic animals that are not cats or

       dogs, we affirm the trial court’s grant of summary judgment in favor of the

       YMCA defendants.


[13]   Affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1410-CT-713 | June 5, 2015     Page 9 of 9
