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Martin v. Hayduk

Court of Appeals of Indiana

December 27, 2017

Michael Martin, Appellant-Plaintiff,
v.
Colby Hayduk and Tiffany Stafford, Appellees-Defendants.

         Appeal 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 Carmel, Indiana.

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] 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 issues:

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 of dogs.
2. Whether, under the common law, there are genuine issues of material fact that Hayduk and Stafford were negligent.

         [¶2] We reverse and remand for further proceedings.[1]

         Facts and Procedural History

         [¶3] 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 electric fence.

         [¶4] 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 electric fence.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

Id.

         [¶10] 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.

         [¶11] 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 ...


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