Appeal
from the Washington Circuit Court The Hon. Larry Medlock,
Judge Trial Court Cause No. 88C01-1703-PL-183
ATTORNEYS FOR APPELLANT J. David Agnew Lorch Naville Ward LLC
New Albany, Indiana Kenneth Doane Doane Law Office, LLC
Jeffersonville, Indiana
ATTORNEYS FOR APPELLEE William H. Kelley Thaddeus C. Kelley
Kelley Law Offices LLC Bloomington, Indiana
BRADFORD, JUDGE.
Case
Summary[1]
[¶1]
When Kathy Fillio left her Salem home in 2016 to spend some
time in Florida, she left it and her animals under the care
of her half-brother Dennis Slate. When a goat became ill,
Slate called Darlene Perkins for help. As Perkins bent over
to help the ill goat, a ram headbutted her, causing her to
fall and break her arm or wrist. Perkins sued Fillio for
negligence, both parties moved for summary judgment on the
question of liability, and the trial court entered summary
judgment in favor of Fillio. The trial court reasoned that
Fillio had no way of knowing that Perkins would be on her
property or that the ram had any dangerous propensities.
Perkins argues that the trial court should have instead
entered summary judgment in favor of her or, at the very
least, that there is a genuine issue of material fact which
precludes the entry of summary judgment in favor of Fillio.
Because we conclude that Perkins's designated evidence
does indeed generate a genuine issue of material fact as to
Fillio's potential liability, we reverse and remand for
further proceedings.
Facts
and Procedural History
[¶2]
Fillio owns a home on land in Salem ("the
Property"), on which she has, at various times, kept
horses, cows, steers, sheep, goats, chickens, dogs, cats, and
guinea pigs. Fillio spends roughly half of her time at the
Property and the other half at a home in Florida. In August
of 2016, Fillio was in Florida and left Slate in charge of
caring for her animals. Fillio later indicated that
Slate's responsibilities were limited to feeding and
watering the animals. While Fillio was gone, a female goat
fell ill, and Slate unsuccessfully tried to contact Fillio by
telephone. On August 21, 2016, Slate contacted Perkins for
help because she had more experience with farm animals, and
Perkins agreed to come to the Property. When Perkins arrived,
she saw the bleating goat on the ground in a pen with other
animals, including a sheep. Slate invited her into the pen,
and they loaded the goat onto a cart. Slate pulled the cart
while Perkins followed behind, trying to keep the goat's
head inside. As it happens, the sheep in the pen was a ram,
i.e., an uncastrated male sheep. As Perkins bent
over to assist the female goat, the ram headbutted her,
knocking her to the ground and breaking her arm or wrist.
Perkins's injuries required two surgeries.
[¶3]
On March 13, 2017, Perkins sued Fillio for negligence. On May
5, 2018, Fillio moved for summary judgment. Fillio designated
portions of hers and Perkins's depositions. On May 3,
2017, Perkins filed a response in which she also moved for
summary judgment on the question of liability, also
designating portions of hers and Fillio's depositions as
well as affidavits from herself and from Dr. Dwayne Allen,
DVM.
[¶4]
According to Dr. Allen's affidavit, rams are generally
territorial and tend to defend themselves, their territory,
and females perceived to be in their herd by headbutting
unfamiliar animals or persons, tendencies of which sheep
farmers are generally aware. Perkins averred that she was
aware that there was a sheep in the pen but was not aware
that it was a ram because it had no visible horns. Perkins
also averred that she had never owned a sheep or ram and was
not familiar with their natural propensities and that Slate
had never warned her that a ram might be protective and
territorial toward an animal which it perceived to be part of
its herd. Fillio's testimony makes it clear that she knew
that the sheep she owned was, in fact, a ram, despite its
lack of horns.
[¶5]
On August 29, 2018, the trial court entered summary judgment
in favor of Fillio:
[H]aving heard arguments on Defendant's Motion for
Summary Judgement and being duly advised [the trial court]
NOW FINDS AND ORDERS:
1. That Kathy Fillio made arrangements to have her brother
feed her "domestic" livestock while she was absent.
2. Domestic animal is defined in I.C. 15-17-2-26.
3. There was a lack of evidence indicating that the Defendant
knew the Plaintiff would be on her real estate in particular
inside the area where the Plaintiff kept the ram and other
sheep.
4. That there was no evidence that the ram had been
aggressive toward anyone in the past.
5. That the Defendant has not violated a duty of care to the
Plaintiff.
WHEREFORE, the Motion for Summary Judgment is hereby GRANTED
in favor of the Defendant and against the Plaintiff.
Appellant's App. Vol. II p. 7.
Discussion
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