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An Evansville couple weren’t responsible under the state’s dog bite statute for a dog that bit a United States Postal Service mail carrier, the Court of Appeals of Indiana affirmed Friday in upholding a trial court’s granting of summary judgment.
Martin Bocanegra III and his wife, Julie, purchased a duplex in 2019 on Linwood Avenue in Evansville from Richard and Vicki Smith.
According to court records, at the time of the purchase, Rhonda Sapp had a written month-to-month lease with the Smiths.
The Bocanegras agreed to honor Sapp’s lease, which permitted Sapp to keep “one small dog.”
Julie saw Sapp’s elderly terrier during a walk-through of the duplex before purchasing it.
On Sept. 11, 2020, USPS mail carrier Michael Buehler had just placed mail in Sapp’s mailbox when Sapp opened the front door.
At that moment, a bully breed dog named Ford rushed out the door and knocked Buehler down.
Ford belonged to Sapp’s friend and had been permitted to stay at the duplex. Sapp’s terrier had died prior to Sept. 11, 2020.
Buehler punched Ford in the face and attempted to scoot away from the dog.
However, Ford bit Buehler on his arm before Sapp was able to restrain Ford.
In March 2021, Buehler filed a complaint against Sapp and the Bocanegras.
Regarding the Bocanegras, the complaint alleged that the Bocanegras were strictly liable to Buehler pursuant to Indiana Code § 15-20-1-3, the dog bite statute.
The complaint also alleged that the Bocanegras were negligent because they had breached their duty of reasonable care to Buehler.
In October 2021, the Bocanegras filed a motion for summary judgment.
In their brief in support of their summary judgment motion, the Bocanegras argued that the statute did not apply to them because they were not Ford’s owners.
They further argued that they had not retained control of the duplex and that because they had not known that Ford was staying at the duplex, they “had no actual knowledge of any dangerous propensity on the part of [Ford].”
Julie Bocanegra stated in her affidavit that she and her husband didn’t know that Sapp had been permitting Ford to stay at the duplex and never observed the dog being there.
The Vanderburgh Circuit Court held a hearing in September 2022 and granted the Bocanegras’ summary judgment motion.
Buehler appealed.
The Court of Appeals concluded the trial court did not err in granting the Bocanegras’ motion and affirmed the summary judgment ruling.
Writing for the appellate court, Judge Patricia Riley said the court agreed with the Bocanegras that the state’s dog bite statute did not apply to them because they were not the owners of the dog that bit Buehler.
Riley wrote that there was no factual dispute that the Bocanegras provided housing to Sapp through a rental agreement that allowed Sapp to keep one small dog.
“However, Buehler has designated no evidence creating a factual issue that the Bocanegras had any interaction or contact with this small dog, let alone that the Bocanegras had personally afforded Sapp’s small dog lodging, shelter, or refuge. Indeed, we note that the small dog allowed in Sapp’s lease was not even the dog that knocked Buehler to the ground and bit Buehler,” Riley wrote in rejecting Buehler’s argument.
The Bocanegras also stated they had no knowledge of Ford staying in the duplex or any knowledge of the dog’s dangerous propensities.
“It was, therefore, incumbent upon Buehler to come forward with designated evidence establishing a genuine issue of material fact concerning the Bocanegras’ actual knowledge of Ford’s dangerous propensities. Buehler failed to do so,” Riley wrote.
Chief Judge Robert Altice and Judge Rudolph Pyle concurred.
The case is Michael Buehler v. Martin Bocanegra III and Julie Bocanegra, 22A-CT-2568.
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