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Perkins v. Fillio

Court of Appeals of Indiana

February 19, 2019

Darlene Perkins, Appellant-Plaintiff,
v.
Kathy Fillio, Appellee-Defendant.

          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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