COA: Grandfather not at fault for dog bite injury on jointly owned property

A grandfather who was in the process of dissolving his marriage wasn’t at fault when his granddaughter was bitten by his future ex-wife’s dog on their jointly owned property, the Indiana Court of Appeals affirmed Wednesday.

In 2017, grandmother Anita Remijas invited Anne Bertucci and her daughters Ayana and Lila to visit her home in Long Beach. During the visit, Anita’s 70-pound mixed-breed dog Milo bit 1-year-old Ayana in the face and injured her eye.

At the time of the incident, Anita and her husband, Donald Bertucci, were in the process of getting divorced, and the grandfather was living in an apartment in Chicago.

In 2018, the child’s father, Benjamin Bertucci, filed a premises liability negligence action against both Anita and Donald. In his complaint, which asked for $100,000 in damages, Benjamin alleged the grandmother owned Milo, the grandmother and grandfather owned the property, and the grandmother and grandfather controlled the Long Beach property. He also alleged the two owed a duty to Ayana “to operate their premises … so that … Ayana would not be injured” and said the injuries to his daughter caused physical and mental anguish.

Donald moved for partial summary judgment, arguing he owed no duty to Ayana because he had not controlled the Long Beach property at the time of the injury. In a review of the materials submitted, it was revealed in the affidavit the grandparents had not lived in the same house for three to four months prior. It also stated Anita had sole principal residence of the Long Beach house during that time.

The LaPorte Superior Court agreed, finding Donald didn’t owe a duty to Ayana because he hadn’t controlled the Long Beach property at the time of the dog bite incident. Accordingly, the trial court granted the grandfather’s summary judgment motion.

The trial court further concluded that because Benjamin was not a prevailing party, he was not entitled to attorney fees and costs. However, Benjamin was ordered to pay Donald $3,000 in fees and costs.

On appeal, the COA affirmed the trial court’s ruling, finding it didn’t err in granting the grandfather’s summary judgment motion and didn’t abuse its discretion in granting his cross-motion for attorney fees and costs.

“In a premises liability case, whether the defendant owes the plaintiff a duty depends primarily on whether the defendant was in control of the premises when the accident occurred,” Judge Rudolph Pyle wrote for the COA, pointing to Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004), and Cox v. Stoughton Trailers, Inc., 837 N.E.2d 1075, 1081 (Ind. Ct. App. 2005).

Also looking at Reed v. Beachy Construction Corp., 781 N.E.2d 1145, 1150 (Ind. Ct. App. 2002), the COA furthered concluded that the simple fact of ownership is not necessarily dispositive of the question of control and the duty that arises therefrom.

“Specifically, Grandfather had surrendered control of the home to Grandmother during the dissolution proceedings and was living in an apartment in Chicago,” Pyle wrote. “He also had no control over who entered the Long Beach Property at the time of the dog bite incident. In fact, Grandfather did not know that Ayana was visiting Grandmother at the Long Beach Property in July 2017.

“In addition, we note that Grandfather’s mortgage and utility payments for the Long Beach Property were a manifestation of his ownership, not his control, of the property,” the opinion continued. “Lastly, Grandfather’s storage of some personal items at the Long Beach Property and his minimal contacts with the property to take items to Grandmother or to pick up items were not sufficient to establish that Grandfather controlled the Long Beach Property.”

As to the attorney fees, the COA found Benjamin failed to cite any cases interpreting Indiana Code § 34-52-1-1(b) in support of his argument and therefore waived his appellate review of the issue.

In a footnote, the appellate panel noted the trial court’s grant of Donald’s summary judgment motion only partially disposed of the litigation because Benjamin’s negligence claim against Anita is still pending.

Judge Mark Bailey concurred in part and dissented in part with a separate opinion.

“… I agree with the majority that Grandfather demonstrated entitlement to summary judgment as to those claims of premises liability,” Bailey opined. “However, I cannot say that Grandfather has shown that he should be dismissed from the litigation at this early juncture. That is because Indiana law also recognizes tort liability for Negligent Entrustment, a legal theory that turns on the defendant’s relationship to the instrumentality of the harm — here, the dog — rather than the place where the harm occurred.”

Bailey pointed to Hardsaw v. Courtney, 665 N.E.2d 603 (Ind. Ct. App. 1996), in his dissent, a dog-bite case in which the COA affirmed a judgment against dog owners who had negligently entrusted the care of their dog to a child.

“Here, Grandfather has not shown an absence of triable issues as to whether he took adequate steps to prevent the attack based upon his relationship to the dog and his special knowledge of both the dog and of Grandmother,” Bailey wrote. “Indeed, based upon the designated evidence, a fact-finder could determine that Grandfather is liable because (1) the dog was marital property, (2) Grandfather was aware of the dog’s aggressive tendencies, having lived with the dog for more than six years; (3) Grandfather had voiced concerns to Grandmother about the aggression; (4) Grandfather and Grandmother had only recently separated; and (5) Grandfather allowed the dog to live with Grandmother despite knowing that Grandmother could not control the dog. Notably, Grandfather stated that, had he known the victim would be visiting Grandmother, he would have intervened to protect the child, telling Grandmother to bring the dog to his residence.

“Ultimately, our Supreme Court has cautioned that ‘[s]ummary judgment is rarely appropriate in negligence cases[.],’ he continued. “… This case is no exception.”

The case is Benjamin Bertucci, Individually and Next Best Friend of Ayana Bertucci, a Minor v. Donald Bertucci and Anita Remijas, 21A-CT-360.

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