COA cites precedent in blocking dog bite victim’s negligence lawsuit

An Indianapolis man whose son was bit by a neighbor’s pit bull was not able to overcome precedent in trying to convince the Court of Appeals of Indiana to hold the landlord liable for the injury.

Matthew Marchino, who rented half of a duplex, filed a negligence action against his landlord, Rex Lott, after his son was bit by the dog belonging to the neighbor in the other half of the duplex. Lott filed a motion for summary judgment, claiming, in part, there was no designated evidence that he retained control over the property when the other tenant, Woodrow Stines, was a resident or at the time of the incident.

The Marion Superior Court granted summary judgment to Lott and the Court of Appeals affirmed in Matthew Marchino, as next best friend of Marcellus Marchino v. Woodrow J. Stines and Rex Lott, 21A-CT-1197

All of Marchino’s arguments were blocked by precedent.

When, the father asserted Lott had control of the property because the lease agreement prohibits pets until approved by the lessor, the appellate panel noted it had rejected a similar argument in Morehead v. Deitrich, 932 N.E.2d at 1276 (Ind. Ct. App. 2010), trans. denied. In response to the father’s contention that Lott had control because the landlord retained the right to enter and inspect the duplex, the appellate panel highlighted Olds v. Noel, 857 N.E.2d at 1041 (Ind. Ct. App. 2006).

The COA also brushed aside Marchino’s final argument that there was a genuine issue of fact as to whether Lott or the tenant was in the best position to protect the neighbor child from the dog.

“However, in Olds, 857 N.E.3d at 12046-47, we explained that ‘the question of duty turns not on the characteristics of the tenant but on the characteristics of the rented premises,’” Judge Rudolph Pyle III wrote for the court. “We further explained that ‘to the extent that a landlord has transferred control and possession of the premises to a tenant, the tenant is liable[,]’ and ‘[t]he injured party has cause for action against the tenant … .’”

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