Karen Skaggs v. Jennifer Yanta (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 23, 2019
• Docket: 18A-CT-2033
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Apr 23 2019, 9:26 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel G. Suber Philip F. Cuevas Daniel G. Suber & Associates Lauren M. Penn Chicago, Illinois Litchfield Cavo LLP Chicago, Illinois

IN THE COURT OF APPEALS OF INDIANA

Karen Skaggs, April 23, 2019 Appellant/Cross-Appellee-Plaintiff, Court of Appeals Case No. 18A-CT-2033 v. Appeal from the Porter Superior Court Jennifer Yanta, The Honorable Roger V. Bradford, Appellee/Cross-Appellant-Defendant Judge Trial Court Cause No. 64D01-1511-CT-10173

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 1 of 8 Case Summary [1] Karen Skaggs filed a personal injury action against her landlord/roommate,

Jennifer Yanta, for dog bites she suffered in an incident involving two of

Yanta’s dogs. The case proceeded to a jury trial. After Skaggs had presented

her case-in-chief, the trial court granted Yanta’s motion for judgment on the

evidence. Skaggs now appeals, claiming that the trial court erred in entering

judgment on the evidence. Yanta cross appeals, challenging the admissibility of

Plaintiff’s Exhibit 4, a notation sheet from the veterinarian’s office concerning

one of the dogs. We conclude that Yanta failed to preserve her challenge to the

admissibility of Exhibit 4. Even so, we conclude that the trial court did not err

in granting Yanta’s motion for judgment on the evidence. Thus, we affirm the

judgment on the evidence in favor of Yanta.

Facts and Procedural History [2] In 2013, Skaggs rented a basement room from Yanta, with whom she had been

friends for over a decade. At the time, Yanta had three large-breed mastiff

dogs. Not long after, Skaggs accompanied Yanta when Yanta purchased

Philly, a female cane corso. The dogs roamed freely within Yanta’s home and

often spent time in the basement with Skaggs. Yanta was responsible for the

feeding and care of her dogs, but Skaggs fed and cared for them when Yanta

was not home. Skaggs frequently accompanied Yanta when she took the dogs

for veterinary visits, and veterinarian Dr. Brooke McAfee recalled that Skaggs

had sometimes brought them in for treatment by herself.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 2 of 8 [3] On August 16, 2015, Skaggs was home alone with the dogs. Philly and one of

the mastiffs, Jersey, were playing together in the basement while Skaggs sat on

the bed watching television. Jersey, apparently worn out from playing, went to

lie down on the floor. Philly apparently wanted to continue playing, and

Skaggs approached her, patted her, and said, “[H]ey Philly, that’s enough, leave

her alone.” Tr. Vol. 2 at 176. Suddenly, the two dogs became entangled, and

Skaggs suffered bites on both wrists, as well as on her left pinky finger. Jersey

suffered several bite wounds that required emergency medical attention, and

Philly sustained minor injuries that did not require medical attention.

[4] Skaggs filed a personal injury action against Yanta, claiming that Yanta was

aware of her dogs’ allegedly dangerous propensities and failed to take steps to

protect Skaggs. Yanta filed a motion for summary judgment. The trial court

denied the motion, noting that Dr. McAfee had not yet been deposed. The

parties agreed to bifurcate the proceedings into liability and damages phases.

[5] Both parties filed several motions in limine. At a pretrial hearing on these

motions, the trial court addressed Yanta’s motion to exclude Plaintiff’s Exhibit

4, a single-page McAfee Animal Hospital notation sheet titled “Veterinary

Record.” The sheet was dated June 6, 2014 and referenced the hospital’s

treatment of Jersey for a puncture wound near her right eye. Part of that entry

reads, “dog fight Saturday.” Plaintiff’s Ex. 4. Yanta claimed that Exhibit 4

was inadmissible hearsay. She expressed reservations concerning the

trustworthiness of the information included in it, claiming that, at best, it shows

only that Jersey was the victim of dog bites, not that she was an aggressor.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 3 of 8 Skaggs responded by arguing that the exhibit was admissible under the business

record exception to the hearsay rule and that Yanta’s reservations concerning

the trustworthiness of the information therein could be addressed during cross-

examination at trial. The trial court denied without comment Yanta’s motion

to exclude the exhibit.

[6] During the liability phase of the jury trial, Skaggs offered Exhibit 4 after laying

a foundation through Dr. McAfee. Yanta said that she had no objection, and

the trial court admitted the exhibit. At the close of Skaggs’s case in chief, Yanta

moved for judgment on the evidence. After oral argument outside the jury’s

presence, the trial court granted Yanta’s motion and entered judgment in her

favor. Skaggs now appeals. Additional facts will be provided as necessary.

Discussion

Section 1 – Yanta failed to preserve any error in the trial court’s admission of Plaintiff’s Exhibit 4. [7] On cross appeal, Yanta challenges the trial court’s admission of Plaintiff’s

Exhibit 4. During trial, Skaggs moved to admit Exhibit 4, and Yanta replied,

“No objection, your Honor.” Id. at 237. Yanta did not merely fail to object

during trial, which would constitute waiver. Raess v. Doescher, 883 N.E.2d 790,

796-97 (Ind. 2008). Rather, by specifically stating that she had no objection,

she expressly agreed to the admission of Exhibit 4 and in so doing invited any

error that may have occurred in its admission. See Oldham v. State, 779 N.E.2d

1162, 1172 (Ind. Ct. App. 2002) (where party expressly agrees to admission of

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 4 of 8 evidence during trial, any error in its admission is invited error, not subject to

appellate review), trans. denied (2003). By inviting error concerning the

admissibility of Exhibit 4, Yanta failed to preserve her evidentiary challenge for

our review. To the extent that she relies on her motion in limine, we note that

only trial objections, not motions in limine, are effective to preserve claims of

error for appellate review. Raess, 883 N.E.2d at 796.

Section 2 – The trial court did not err in granting Yanta’s motion for judgment on the evidence. [8] Having determined that Yanta failed to preserve any error in the trial court’s

admission of Exhibit 4 as a business record, we now address Skaggs’s challenge

to the trial court’s grant of Yanta’s motion for judgment on the evidence. A

motion for judgment on the evidence challenges the legal sufficiency of the

evidence. Walgreen Co. v. Hinchy, 21 N.E.3d 99, 106 (Ind. Ct. App. 2014), trans.

denied (2015). When reviewing a trial court’s ruling on a judgment on the

evidence, we apply the same standard as the trial court. Kimbrough v. Anderson,

55 N.E.3d 325, 336 (Ind. Ct. App. 2016), trans. denied. “We may not substitute

our judgment for that of the jury on questions of fact nor should a motion for

judgment on the evidence be granted because the evidence preponderates in

favor of the moving party.” Id. Instead, we determine only whether any

reasonable evidence exists to support the nonmovant’s claim and, if so, whether

the inference supporting the claim can be drawn without undue speculation. Id.

In other words, “[t]he plaintiff’s burden may not be carried with evidence based

merely upon supposition or speculation.” Laycock v. Sliwkowski, 12 N.E.3d 986,

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 5 of 8 992 (Ind. Ct. App. 2014), trans. denied (2015). The motion should be granted

only where there is no substantial evidence to support an essential issue in the

case. Solnosky v. Goodwell, 892 N.E.2d 174, 181 (Ind. Ct. App. 2008). “If there

is evidence that would allow reasonable people to differ as to the result,

judgment on the evidence is improper.” Id.

[9] Here, Skaggs seeks redress for personal injuries she suffered when bitten by

Yanta’s dog(s). Under Indiana common law,

all dogs, regardless of breed or size, are presumed to be harmless domestic animals. This presumption is overcome by evidence of a known or dangerous propensity as shown by specific acts of the particular animal. A dangerous propensity is a tendency of the animal to do any act that might endanger the safety of persons or property in a given situation.

Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255, 1258 (Ind. 2003)

(citations omitted). Owners of domestic animals may be held liable for harm

caused by their pet “only if the owner knows or has reason to know that the

animal has dangerous propensities.” Id. at 1259. “[A] jury may not infer that

an owner knew or should have known of a dog’s dangerous or vicious

propensities from the fact of a first time, unprovoked biting.” Id. at 1260.

Nevertheless, “a jury may infer that the owner knew or should have known of

the dog’s dangerous or vicious propensities only where the evidence that the

particular breed to which the owner’s dog belongs is known to exhibit such

tendencies.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 6 of 8 [10] Here, Skaggs does not assert that either Philly or Jersey belongs to a breed

known to show vicious tendencies. In fact, she raises no argument at all with

respect to Philly. Rather, she asserts that Yanta had reason to know that Jersey

had dangerous propensities due to the entry on the June 6, 2014 veterinary

notation sheet indicating, “dog fight Saturday.” Plaintiff’s Ex. 4. Dr. McAfee

treated her that day and had no recollection or record of Jersey’s having been in

a dog fight. She explained that generally the notation sheets are filled out by

veterinary technicians who sometimes record their own inferences based on a

particular pet’s condition and/or the owner’s explanation of the circumstances

surrounding the pet’s need for treatment. She emphasized that in her treatment

of Jersey over the years, she found her to be well trained and well behaved. She

also explained that dogs living in multi-dog homes often receive bites resulting

in puncture wounds when they are not fighting but are merely playing together.

Defendant’s Ex. C at 64-65. She estimated that she sees puncture wounds in

dogs almost every other day.

[11] Moreover, the record shows that Skaggs was immensely familiar with Yanta’s

dogs. By the time she was bitten in 2015, she had lived in Yanta’s home with

Jersey for two years. Yet, neither she nor Yanta could recall any dog fight that

precipitated the June 2014 vet visit. In her own account of the 2015 incident,

Skaggs said that Jersey had ceased playing/scuffling with Philly and had gone

to lie down. It was Philly that was anxious to resume play, and it was Skaggs’s

action of approaching Philly that precipitated Jersey’s resumption of play and

ultimate entanglement with Philly and Skaggs. When asked at trial whether she

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 7 of 8 remembered which dog bit her, Skaggs responded, “I have no idea, it was

chaos. I don’t know, probably both of them.” Tr. Vol. 2 at 183. This

testimony amounts to speculation as to whether Jersey bit Skaggs at all. In fact,

there was no probative evidence that Jersey had ever been vicious, as the

veterinary record showed only that Jersey suffered injuries that she might have

received from what an unidentified technician presumed to have been a dog

fight. In other words, in her case-in-chief, Skaggs’s evidence showed only that

Jersey was a victim of puncture wounds in June 2014. There is no evidence

that Jersey was ever an aggressor, either with another dog or with a human.

[12] In sum, the record simply does not support an inference that Jersey had shown

any vicious propensities about which Yanta should have been aware. Instead,

Skaggs’s argument concerning Jersey’s history requires undue speculation. As

Skaggs has failed to overcome the presumption that Yanta’s dogs were harmless

domestic pets, we affirm the grant of judgment on the evidence in favor of

Yanta.

[13] Affirmed.

Bradford, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-2033 | April 23, 2019 Page 8 of 8