Cook v. Whitsell-Sherman

771 N.E.2d 1211, 2002 Ind. App. LEXIS 1190, 2002 WL 1639483
CourtIndiana Court of Appeals
DecidedJuly 24, 2002
DocketNo. 48A04-0111-CV-493
StatusPublished
Cited by1 cases

This text of 771 N.E.2d 1211 (Cook v. Whitsell-Sherman) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Whitsell-Sherman, 771 N.E.2d 1211, 2002 Ind. App. LEXIS 1190, 2002 WL 1639483 (Ind. Ct. App. 2002).

Opinion

OPINION

VAIDIK, Judge.

Case Summary

Tamara Cook challenges the trial court's determination that she is liable for injuries that occurred when her dog bit Kenneth Whitsell-Sherman. Cook also argues that the trial court erred in admitting evidence of potential future medical treatment for Whitsell-Sherman's injuries. Because we find that the trial court erred in concluding that Cook was negligent per se for Whit-sell-Sherman's injuries, we reverse and remand.

Facts and Procedural History

On July 31, 1998, Whitsell-Sherman was delivering mail as a letter carrier for the United States Postal Service when he arrived at the home of Marva and Joseph Hart (collectively, the Harts). The Harts residence had a fully fenced-in yard with a mailbox on the outside of the fence, which allowed for a postal carrier to deliver the mail without having to enter the yard. On that day, the Harts were taking care of Cook's eight-year old Rottweiler dog while Cook was out of town.

When Whitsell-Sherman arrived at the residence, the Harts were both outside the fence on the sidewalk talking, and their daughter was also outside the fenced-in yard holding the Rottweiler by a leash. Whitsell-Sherman delivered the Harts mail and started to step around Marva. At that point, the Rottweiler lunged forward and bit Whitsell-Sherman on the hand. The Harts' daughter was no longer holding onto the leash. After a short time, the Rottweiler released Whitsell-Sher-man's left hand, and the Harts provided Whitsell-Sherman with a towel to control bleeding until emergency assistance arrived and took him to the hospital. As a result of the dog bite, Whitsell-Sherman sustained injury to his left hand causing him to incur $3,491.71 in medical bills and $120 in lost wages.

Prior to the incident, the Rottweiler had not demonstrated any aggressive or inappropriate behavior. Cook owned the Rottweiler beginning in November 1990 when the dog was an eight-week-old puppy. When Cook would go on vacation she would board the Rottweiler at a boarding kennel where Marya worked. In 1994, Cook moved to a different house where she could no longer have the Rottweiler, and the Harts agreed to take the dog. In 1997, Cook took the Rottweiler back, but the Harts continued to take care of the dog at their home whenever Cook had to leave town.

On July 28, 2000, Whitsel-Sherman filed suit against Cook and the Harts for damages from the bite. On October 28, 2000, Cook filed her Answer to Plaintiff's Complaint and Cross-claim in which she denied liability, asserted that Whitsell-Sherman's injuries were caused by his own fault, and claimed that she was entitled to indemnification from the Harts if a judgment was entered against her. After the Harts failed to appear in the case and defend themselves, Cook filed a Motion for Default Judgment against them on August 31, 2001. The trial court granted Cook's Motion for Default on September 5, 2001.

On September 21, 2001, a bench trial was held on this action. During the bench trial Whitsell-Sherman introduced evidence of his lost wages, current medical expenses, possible future medical expenses, and pain and suffering. During the course of the trial, the trial court also granted Whitsell-Sherman's oral request for a default judgment against the Harts. At the conclusion of the bench trial, the court took the matter under advisement. On October 11, 2001, the trial court issued [1214]*1214its Findings of Fact and Conclusions of Law in which it determined:

1. That pursuant to I.C. 15-5-12-1, Plaintiff need not meet the common law burden of proving that Cook had prior knowledge of the viciousness of her dog.
2. That a clear and unambiguous reading of 1.C. 15-5-12-2 requires a determination that Cook is the owner of the dog that attacked Plaintiff.
3. That Cook is liable for the injuries suffered and damages incurred by the Plaintiff, Kenneth Whitsell-Sherman, under the doctrine of negligence per se and pursuant to the provisions of I.C. 15-5-12-1,
4. That Plaintiff, Kenneth Whitsell-Sherman's estimated future medical expenses are admissible pursuant to IRE 418.

Appellee's App. p. 3-4. The trial court then entered judgment "against the defendants, Tamara Cook, Joseph Hart and Mara [sic] Hart, jointly and severally, in the sum of eighty seven thousand dollars ($87,000.00) plus costs." Appellant's App. p. 9. This appeal ensued.

Discussion and Decision

Cook challenges the trial court's determination that she was negligently liable for Whitsell-Sherman's damages. More specifically, Cook argues that the trial court erred in applying Indiana Code § 15-5-12-1 when it found Cook negligent per se as a non-custodial owner of a dog that attacked a United States Postal Service employee. Cook also argues that the trial court erred in admitting evidence of potential future medical treatment for Whitsell-Sherman's injuries. We address each argument in turn.

I. Indiana Code § 15-5-12-1

Because Whitsell-Sherman is an employee of the United States Postal Service and was carrying out his duties when he was attacked by Cook's dog, this case is governed by Indiana Code § 15-5-12-1. Indiana Code § 15-5-12-1 provides:

If a dog, without provocation, bites any person who is peaceably conducting himself in any place where he may be required to go for the purpose of discharging any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States of America, the owner of such dog may be held liable for any damages suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.

Cook brings two arguments relating to this statute. Cook argues that the statute should not apply to her because she was a non-custodial owner of the dog at the time of the attack. Cook also asserts that the trial court erred in finding that she violated Indiana Code § 15-5-12-1 and should therefore be liable under the doctrine of negligence per se.

A. Non-custodial Owner

Cook's first argument is that under the relevant statute in this case, she should not be found liable for damages resulting from the dog attack because she was a non-custodial owner of the dog at the time of the attack. In establishing the applicability of Indiana Code chapter 15-5-12, Indiana Code § 15-5-12-2 provides: "As used in this chapter, "owner" means the owner of a dog. The term includes a possessor, keeper, or harborer of a dog." Cook argues that because Indiana Code § 15-5-12-2 includes a "possessor, keeper, or harborer" under the term of "owner," the statute should be read to apply only to individuals who are in control of the dog at the time of an attack, which would exclude non-custodial owners. Therefore, Cook asserts that the statute would not apply to her. We disagree.

[1215]*1215When interpreting the meaning of a statute, this court is guided by well-established rules of statutory construction. Bringle v. State, 745 N.E.2d 821, 826 (Ind.Ct.App.2001), trans. denied. A statute should be construed to ascertain and give effect to the expressed intention of the legislature by giving the words and phrases their common and ordinary meaning. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
771 N.E.2d 1211, 2002 Ind. App. LEXIS 1190, 2002 WL 1639483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-whitsell-sherman-indctapp-2002.