Jeffrey Herbert v. Jacob Gardner, Ziaollah Loghmani, and Kamran Akhavan (mem. dec.)
49A02-1702-CT-391
| Ind. Ct. App. | Jul 31, 2017Background
- In Oct. 2015 Herbert was bicycling past rental property at 945 E. Morris St.; Gardner’s dog Chewbacca ("Chewy") ran out, allegedly attacked Herbert, who fell and broke his leg.
- Gardner rented the property from Landlords (Loghmani and Akhavan); property had a ~3.5–4 ft chain‑link fence with latched gates; fence was generally in good condition though a corner post was bent.
- Chewy: neutered, vaccinated, ~35–40 lbs, had occasionally barked at passersby but had no history of biting or aggressive conduct; neither Gardner nor Landlords had received complaints or believed Chewy had vicious propensities.
- Herbert sued Gardner and Landlords for damages; both defendants moved for summary judgment; trial court granted summary judgment for Gardner and Landlords; Herbert appealed.
- Trial court and appellate review applied Indiana summary judgment standards, construing designated evidence and inferences in favor of the non‑moving party.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gardner is liable under Marion County ordinances for a dog at large/attack | Herbert: Ordinances impose owner responsibility when a dog escapes or attacks; creates a duty independent of common‑law dangerous propensity rules | Gardner: Ordinances do not create a private civil cause of action or negligence per se; common‑law rule applies (presumption dogs are harmless absent known vicious propensity) | Court: Ordinances do not provide private right to recover; no evidence Chewy had dangerous propensity or that Gardner knew of one; summary judgment for Gardner affirmed |
| Whether Landlords are liable for failing to maintain fence (premises liability) | Herbert: Landlords failed to maintain fence (bent post) so Chewy could escape; dog created foreseeable dangerous condition on property | Landlords: A tenant’s dog is not a property defect; landlords lack actual knowledge of any dangerous propensity and did not retain sufficient control to be liable | Court: Under precedent plaintiff must show landlord retained control and had actual knowledge of dog’s dangerous propensities; no evidence of knowledge; summary judgment for Landlords affirmed |
Key Cases Cited
- Cook v. Whitsell‑Sherman, 796 N.E.2d 271 (Ind. 2003) (dogs presumed harmless; owner liable if aware of dangerous propensity)
- Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003) (related to dog‑liability presumption)
- Ross v. Lowe, 619 N.E.2d 911 (Ind. 1993) (definition and proof of dangerous propensity)
- Morehead v. Deitrich, 932 N.E.2d 1272 (Ind. Ct. App. 2010) (tenant’s dog not a property defect; landlord liability requires control and actual knowledge)
- McCraney v. Gibson, 952 N.E.2d 284 (Ind. Ct. App. 2011) (reinforcing Morehead rule on landlord liability for tenant’s dog)
- FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167 (Ind. Ct. App. 2012) (standard of review for summary judgment)