A woman injured after being head-butted by a ram could not convince the Indiana Court of Appeals on Thursday that the trial court erred in giving certain final instructions during her unsuccessful jury trial.
While assisting Kathy Fillio’s brother in aiding one of Fillio’s ill goats, Darlene Perkins was head-butted by a ram on Fillio’s property and broke her arm. Perkins later sued Fillio for “carelessly and negligently” maintaining her premises as to create an “unreasonably dangerous environment”, despite Fillio having no knowledge that Perkins was even on her property to begin with.
The Washington Circuit Court ruled in favor of Fillio, finding a lack of evidence indicating Fillio knew Perkins would be on her property or inside the area where she kept the ram and other sheep. It also ruled Fillio owed Perkins no duty of care.
Previously, the Indiana Court of Appeals reversed the grant of summary judgment and remanded for further proceedings, holding that genuine issues of material fact existed regarding whether rams are dangerous as a class of animal. And if so, whether Fillio took reasonable precautions under the circumstances to prevent the ram from causing injury to invitees.
A jury ultimately returned a verdict in favor of Fillio, prompting Perkins to file the instant appeal in Darlene Perkins v. Kathy Fillio, 20A-PL-00099.
Specifically, Perkins argued whether the trial court committed reversible error when it gave a jury instruction modeled after Model Civil Jury Instruction 1929; erred by instructing the jury about the duty to maintain a proper lookout; and whether a mistrial was necessary because Fillio flagrantly violated a motion in limine.
The Indiana Court of Appeals affirmed the jury verdict, first finding no error in giving Final Instruction #30, a modified version of Indiana Model Civil Jury Instruction 1929 on the “Duty to Invitee.”
“The issue decided on appeal following summary judgment was whether rams were dangerous as a class of animal, and this court held that there was a genuine dispute of fact regarding whether they were. Perkins’ status on the land was not necessary to that determination, and therefore, we hold her status on the land was not established as law of the case,” Judge Melissa May wrote for the appellate court.
It further found that the trial court did not err in leaving the question of Perkins’ status to the jury because the status turned on factual questions. Additionally, it noted that Perkins failed at trial to take issue with the omission of the word “occupant” from Final Instruction #30 and she did not tender an instruction indicating the numerous ways an invitation onto a premises may be extended. As a result, the appellate court found her argument to be waived.
Finally, it found that Final Instruction #30 did not require Perkins to prove additional, unnecessary elements. Rather, it concluded that the instruction simply restated elements Perkins was already required to prove.
“Perkins next contends Final Instruction #6 erroneously imposed duties on her that are not applicable in the premises liability context … Perkins concedes that maintaining a proper lookout when crossing the street is necessary and reasonable because oncoming traffic is a known hazard. However, Perkins believes she was not similarly situated to a pedestrian crossing the street. We disagree,” the appellate court wrote.
“Just as a pedestrian should anticipate that cars may be traveling down a road, a person entering an animal pen should anticipate that the animals in the pen may behave aggressively toward an unfamiliar presence,” it continued. “Final Instruction #6 was warranted by the evidence and was an accurate statement of law, and Perkins has not demonstrated the trial court erred by giving the instruction.”
Lastly, the appellate court found Perkins cannot contend on appeal that she was entitled to a mistrial because she failed to move for a mistrial at trial.