from the Hendricks Superior Court, The Honorable Stephenie D.
LeMay-Luken, Judge, Trial Court Cause No. 32D05-1510-CT-129
ATTORNEY FOR APPELLANT Rebecca Eimerman Zionsville, Indiana.
ATTORNEY FOR APPELLEE - COLBY HAYDUK 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
of the Case
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
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
2. Whether, under the common law, there are genuine issues of
material fact that Hayduk and Stafford were negligent.
We reverse and remand for further proceedings.
and Procedural History
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
"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
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
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.
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 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.
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.
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.
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
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.
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.
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