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Spence v. Buck

United States District Court, N.D. Indiana, Hammond Division

November 6, 2014

DAVID BUCK, Defendant.


PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on Plaintiff's Motion for Summary Judgment and/or Motion to Strike [DE 26], filed by Plaintiff Matthew Spence on September 4, 2014. For the reasons set forth below, the Court grants in part and denies in part Plaintiff's motion.


On May 3, 2013, Plaintiff Matthew Spence filed a Complaint, alleging that, without provocation, Defendant David Buck's dog, which was confined in Defendant's pickup truck with the windows lowered, attacked and bit Plaintiff as he walked past Defendant's truck. Plaintiff alleges that Defendant was careless and negligent in failing to properly control and restrain his dog and in failing to warn Plaintiff that his dog was vicious. Plaintiff alleges that as a direct and proximate result of the Defendant's negligence Plaintiff was bitten by the dog and sustained severe and permanent injuries to his face, including permanent facial scarring and disfigurement as well as other injuries.

Defendant filed an Answer on July 29, 2013, asserting several affirmative defenses sounding in contributory negligence, including that Plaintiff was the sole proximate cause, contributory negligence, incurred risk, assumed risk, failure to avoid injury, failure to mitigate damages, and open and obvious danger, as well as affirmative defenses of "act of God, " collateral source payments, lack of control, and the statute of limitations. Defendant also asserted the right to raise additional affirmative defenses developed during the course of discovery.

Plaintiff filed the instant motion for summary judgment on September 4, 2014, seeking summary judgment on certain of Defendant's affirmative defenses. Defendant filed a response on October 16, 2014, and Plaintiff filed a reply on October 23, 2014.

The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. ยง 636(c).


The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). "[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the nonmoving party." Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotations omitted).

A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply "showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent's claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has "produced sufficient evidence to support a conclusion that there are no genuine issues for trial, " then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc., 914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).

Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed.R.Civ.P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e) provides that, "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it...." Fed.R.Civ.P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts, " but must "come forward with specific facts showing that there is a genuine issue for trial. '" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)).

In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50.


On February 25, 2012, Defendant David Buck owned an approximately six-year old male black Labrador Retriever weighing about 82 pounds named Cole and an approximately nine-year old male chocolate Labrador Retriever named Coco. Since they were puppies, both dogs often rode along in Defendant's truck. Prior to that date, Defendant had driven the dogs to the American Legion Post 400 in Fish Lake/Walkerton, Indiana, approximately 20 times, leaving them in the back seat of the cab of his pick up truck each time while he was inside the building.

That day, Plaintiff Matthew Spence drove to the American Legion Post to meet family. He backed his car into a spot to the right and across the parking lot from the entrance of the building, so that the front of his car was facing the building. Patty Kosiba, the bar tender that day, described the location of his car "as you leave the exit door, on the left, on the other side of the parking lot." (Pl. Br., Ex. F, p. 14, ll. 6-7).[1] Plaintiff went into the building and discovered that his family had already left. He sat down at the bar and ordered a beer.

Approximately thirty minutes after Plaintiff sat down, Defendant arrived at the American Legion Post in his four-door pick-up truck with his two dogs, who were riding in the back seat of the cab. He parked close to the entrance of the building, with the front of the truck facing the building. From the view exiting the building, there were one to three handicapped spots to the left of his truck. Upon arriving, Defendant left the dogs in the back seat of the ...

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