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Byers v. Moredock

Court of Appeals of Indiana

May 18, 2015

Gary P. Byers, Appellant-Plaintiff,
v.
Robert E. Moredock and Rhoda S. Moredock, Appellees-Defendants

Appeal from the Howard Superior Court. The Honorable George A. Hopkins, Judge. Cause No. 34D04-1206-CT-595.

ATTORNEYS FOR APPELLANT: Hilary A. Barnes, Christopher & Taylor, Indianapolis, Indiana; Scott A. Benkie, Benkie & Crawford, Indianapolis, Indiana.

ATTORNEY FOR APPELLEES: Peter G. Wenzl, Nationwide Mutual Insurance Company, Indianapolis, Indiana.

Brown, Judge. Crone, J., and Pyle, J., concur.

OPINION

Page 1017

Brown, Judge.

[¶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 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

Page 1018

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 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 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 ...

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