David Noble and Jennifer Noble, Appellants-Plaintiffs v. LLC (2025)

MEMORANDUM DECISION

[1] David Noble (“David”) and Jennifer Noble (together, the “Nobles” or “Plaintiffs”) appeal the trial court's entry of summary judgment in favor of Fairview Mobile Home Community, LLC, (“Fairview”) with respect to their claim for damages related to injuries sustained by David as a result of a dog bite.¹ We reverse.

Facts and Procedural History

[2] On January 8, 2021, the Nobles filed a Complaint for Damages against Fairview, John Bird, and Dakota Thompson (collectively, “Defendants”). The Nobles alleged that, on July 19, 2020, a dog owned by Bird and Thompson was running at large in Fairview's mobile home community, came upon the Nobles’ mobile home space, and attacked their dog which was tethered with a leash on the property. They alleged the dog was known or should have been known by Defendants to have a vicious and dangerous nature and that David, in his attempt to separate the dogs, was severely bitten and injured, suffering permanent injuries to his right hand.

[3] On June 5, 2024, the Nobles filed a motion for partial summary judgment and a memorandum on the issue of liability. In his Second Amended Affidavit, David stated:

1. Affiant is well acquainted of the description of the dog that John Bird and Dakota Thompson maintained and owned at the house-trailer across the street in the Fairview Mobile Home Community, LLC during the time they moved in until the dog was quarantined after the fifth attack about the last of July, 2020.

* * * * *

3. Approximately three weeks after John Bird and Dakota Thompson moved into the Mobile Home Park, their dog ran at large through the streets and common areas of the Mobile Home Park and attacked Plaintiffs’ dog while it was tethered at Plaintiffs’ house. Plaintiff and his wife notified Dwayne Wagers, Park Manager and Registered Agent of Fairview Mobile Home Community, LLC (See Exhibit A) and the Salem Police. Dwayne Wagers said he would talk to the owners, John Bird and Dakota Thompson.

4. Thereafter John Bird and Dakota Thompson allowed their dog to run at large through the streets and common areas of the Mobile Home Park and a second attack occurred while Plaintiffs’ dog was tethered at the Plaintiffs’ home. Pat Spaulding, a neighbor, resided at the Mobile Home Park, witnessed the attack and broke up the attack and ran the dog of John Bird and Dakota Thompson back to their mobile home. When affiant returned home, Pat Spaulding told affiant what happened and affiant reported the attack to Dwayne Wagers, Park Manager who told affiant to call the Police. The Police said they would make a report.

5. On or about April 17, 2020, John Bird and Dakota Thompson allowed their dog to run at large through the streets and common areas of the Mobile Home Park yet again and a third attack occurred while Plaintiffs’ dog was tethered with a chain at Plaintiffs’ home. When the attack occurred Plaintiff David Noble saw that the dog had about a four foot part of a leash still attached to his collar. Plaintiff notified John Bird observing from his home across the street: Affiant David Noble described to him what had happened. John Bird responded in a nice manner that he was sorry and that it would not happen again. Affiant called the Police. Two Police cars came and [O]fficer Moore and I believe Officer John Taylor also came I believe Eric Tussey of Animal Control came. David Noble also notified Dwayne Wagers, Park Manager, who said he couldn't do anything about it.

6. On July 19, 2020 the Dog owned by John Bird and Dakota Thompson, was again allowed to run at large through the streets and common areas of the Mobile Home Park and came onto Plaintiffs’ lot again, for the fourth time, attacked Plaintiffs’ dog who was tethered with a dog chain. Plaintiff David Noble heard the attack and in his attempt to separate the attacking dog from Plaintiffs’ dog, was severely bitten by the dog owned by John Bird and Dakota Thompson and suffered permanent injuries to his right hand. David Noble received emergency treatment at Salem Hospital.

7. Immediately following the attack, Dakota Thompson told David Noble she was sorry and took the dog home. David Noble called Dwayne Wagers and reported the attack. David Noble also called the Salem Police and Animal Control. Officer Jordan Taylor investigated.

8. On or about the last of July, 2020, Bird and Thompson again allowed the dog to run at large and, for the fifth time, [their] dog came to Plaintiffs’ lot and attacked Plaintiff David Noble and ripped [his] pants. Mr. Wagers, The Police and Washington County Animal Control were called. Animal Control took possession of the dog and put the dog in quarantine.

Appellants’ Appendix Volume II at 191-193.

[4] In his affidavit, Patrick Spaulding stated:

(1) I am acquainted with the dog owned by John Bird and Dakota Thompson, having seen the dog at the home of Dakota Thompson and John Bird and having seen the dog running at large multiple times through the streets and common areas of the Fairview Mobile Home Community Park, where I live, both before and after the events.

(2) I do not remember the exact date, but on or about March, 2020 I heard the dog owned by David Noble yelping in pain, and when I checked what was happening I saw the dog owned by John Bird and Dakota Thompson attacking the David Noble dog that was located at the Noble property and tethered on the Noble property.

(3) I intervened and stopped the attack and took the dog owned by John Bird and Dakota Thompson to their home across the street.

* * * * *

(5) I also told Park Manager Dwayne Wagers about the incident.

Appellants’ Appendix Volume III at 81-82.

[5] In their memorandum, the Nobles argued, “[a]s a landlord retaining control over the subject Mobile Home Park, who had actual knowledge of the Dog's dangerous propensities, Fairview ․ owed [them] a duty to exercise reasonable care to control the dog.” Appellants’ Appendix Volume II at 178. They argued that Wagers, “who had been made aware of at least three prior, similar attacks, was well aware of the Dog's vicious propensities.” Id.

[6] In July 2024, Fairview filed a response to the Nobles’ summary judgment motion and a cross-motion for summary judgment. Fairview argued, “[i]n order to survive summary judgment as to Fairview ․ , the Plaintiffs must establish ․ that Fairview: i. retained control of the property; ii. had actual knowledge that [the] tenant[s’] dog had dangerous propensities.” Id. at 208. Fairview asserted, “it is conceded that Noble claims to have made Fairview aware of the dangerous propensities of the Bird/Thompson dog, through its resident agent/manager, Dwayne Wagers on 3 occasions prior to [the] July 19, 2020 bite incident” and “[s]uch claimed interactions and any notice to law enforcement and Fairview are in substantial dispute per the designated evidence.” Id. at 208-209. “Concerning the ․ retention of control of the property,” Fairview argued, “[i]t is undisputed the Bird/Thompson dog was kept, controlled and maintained exclusively by them” and “Fairview merely maintains common areas and has no control of the homes themselves including the housing, maintaining, keeping, or restraint of animals within such homes or upon the lots leased by the tenants for placement of such homes.” Id. at 209.

[7] In his affidavit, Adern “Dwayne” Wagers stated in part “I was the manager of [Fairview] from approximately 2009 until present” and “I deny any recollection of being made aware of any dog issues between Mr. Noble and Mr. Bird prior to the incident of July 2020[.]” Id. at 238-239. Wishtasb “Anthony” Kushesh, who owned Fairview from 2019 through 2021, stated Fairview “consisted of 26 mobile home lots that were leased to tenants for placement of a mobile home”; Wagers “acted as a park manager”; and “myself and my park manager did not control or maintain any tenant-owned animals” and “did not control or maintain each tenant's rented lot, nor the tenant-owned homes placed upon such lots.” Appellants’ Appendix Volume III at 74-75. In his deposition, David stated that a road separated his home from the home of Bird and Thompson and that one of the mobile home park's rules was that residents were supposed to keep their animals on a leash or a chain. When asked if he knew “how [Bird and Thompson] maintained the animal,” David replied, “I guess they kept it in the house.” Id. at 35-36. When asked, “[d]id you ever see it out on leash or rope,” David answered, “[e]very time they put it out on a leash or a chain, it would get off, come to my house,” and when asked “[e]very time,” he replied, “[j]ust about every time.” Id. at 36.

[8] On August 29, 2024, the trial court held a hearing. Counsel for the Nobles argued that Fairview had knowledge of the dangerous propensities of the dog that attacked David and had a duty to exercise reasonable care. Counsel for Fairview asserted that Morehead v. Deitrich, 932 N.E.2d 1272 (Ind. Ct. App. 2010), trans. denied, is “sort of a controlling case.” Transcript Volume II at 75. He argued, “it's been argued that [Fairway] maintained control over the streets and common areas of ․ the park, which is fine, but they did not maintain control over the interior of the home where the dog was stored or housed and [ ] there wasn't anything negligent about what my client did in that regard[.]” Id. at 75-76. Counsel for the Nobles argued that Fairview had “control over the streets,” “[t]his dog had to cross the street,” and the dog “was loose at least five (5) times, and go [sic] across the street to [the Nobles’] house.” Id. at 78.

[9] On September 11, 2024, the trial court issued an order granting Fairview's cross-motion for summary judgment. The court found:

In this case, there is no genuine issue of material fact that Fairview was the landlord. There is also no genuine issue of material fact that Bird and Thompson were the dog owners. There is no genuine issue of material fact that Noble and Bird and Thomp[s]on rented adjacent lots from Fairview. And there is no genuine issue of material fact that the dog attack occurred on the Noble lot.

Given these facts and the legal analysis in Morehead, Walker [v. Ellis, 129 N.E.2d 65 (Ind. Ct. App. 1955),] and Blake [v. Dunn Farms, Inc., 413 N.E.2d 560 (Ind. 1980),] regarding premises liability for landlords and dogs, this Court finds that Fairview neither held nor kept the animal and was under no legal obligation to take action to contain the animal. Fairview is, therefore, entitled to judgment as a matter of law.

Appellants’ Appendix Volume II at 27. The court also issued an order granting the Nobles’ motion for partial summary judgment on the issue of liability against Bird and Thompson and denying the Nobles’ motion for partial summary judgment on the issue of liability as to Fairview. The Nobles filed a motion to correct error, which the court denied. At the Nobles’ request, the trial court issued an order directing the entry of its orders granting summary judgment to Fairview and denying the Nobles’ motion to correct error as final judgments and staying the proceedings pending appeal.

Discussion

[10] Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Dep't of Ins. v. Doe, 247 N.E.3d 1204, 1210 (Ind. 2024) (citing Ind. Trial Rule 56(C)). Our review is de novo, drawing all reasonable inferences from the evidence in the non-movant's favor. Id. (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)). The fact that the parties make cross-motions for summary judgment does not alter our standard of review. Sterling Commercial Credit-Mich., LLC v. Hammert's Iron Works, Inc., 998 N.E.2d 752, 756 (Ind. Ct. App. 2013). Summary judgment is rarely appropriate in negligence cases because they are particularly fact-sensitive and are governed by a standard of the objective reasonable person, which is best applied by a jury after hearing all the evidence. Kramer v. Catholic Charities of Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).

[11] The Nobles argue that Bird and Thompson's dog “attacked [their] dog and David Noble on five separate occasions,” “[t]his attack occurred as the vicious dog wandered the common areas of Fairview,” “[i]ndeed, the dog was seen roaming the common areas of Fairview before and after the attacks,” and “the Fairview park manager was aware of each of the five attacks.” Appellants’ Brief at 11. They state that they “are not complaining that the landlord rented premises to the owners of a vicious dog which then unexpectedly escaped confinement,” but rather “are asserting that Fairview allowed a vicious animal to wander around the common areas of the mobile home park.” Id. at 14. They argue “this Court in Morehead did not hold that a landlord can never be held liable for the attack of another tenant's dog,” that the Court found that under the facts of that case that “it was not foreseeable that the dog would escape confinement,” and that in this case the dog “was allowed to roam the common areas of Fairview and engage in repeated attacks of animals and humans.” Id. at 16.

[12] Fairview asserts that “the crux of the Nobles’ argument concerning application of the Morehead decision is that the control element prong should be modified or extended to create liability for when an animal escapes confinement from a tenant-maintained property and then crosses landlord-maintained common areas to get to another tenant-maintained property.” Appellee Fairview's Brief at 10. It argues “no injuries occurred in a common area, but rather on the Nobles’ tenant-maintained lot after the Bird/Thompson dog unexpectedly escaped from their tenant-owned and tenant-maintained home.” Id.

[13] In Morehead v. Deitrich, we addressed the extent to which a landlord may be liable for the acts of a dog belonging to the landlord's tenants. 932 N.E.2d at 1276-1280. In that case, Duane Deitrich owned a single-family dwelling on Usher Street in Logansport and leased the property to tenants who had a dog. Id. at 1274. Alrita Morehead, a postal carrier, was delivering mail on Usher Street. Id. After depositing mail in the dwelling's mailbox, Morehead started walking to the next house on her route. Id. As she walked down the public sidewalk, Morehead heard a sound behind her, turned around, and was bitten by the tenants’ dog. Id. Morehead filed a complaint against Deitrich. Id. The trial court later entered summary judgment in favor of Deitrich, finding that he did not retain control of the property. Id. at 1276.

[14] On appeal, this Court found: “In order to prevail against a landowner for the acts of a tenant's dog, the plaintiff must demonstrate both that the landowner retained control over the property and had actual knowledge that the dog had dangerous propensities.” Id. at 1276 (quotations marks and brackets omitted) (citing Jones v. Kingsbury, 779 N.E.2d 951, 953 (Ind. Ct. App. 2002) (citing Baker v. Weather ex rel. Weather, 714 N.E.2d 740, 741 (Ind. Ct. App. 1999))); see Buehler v. Bocanegra, 212 N.E.3d 227, 233 (Ind. Ct. App. 2023) (“it is well-settled that, in a dog bite case, the duty of reasonable care imposed upon a landowner who did not own the dog is measured by the landowner's control over the property and the landowner's actual knowledge that the dog had dangerous propensities”), trans. denied. 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). We observed that Morehead conceded that Deitrich did not have control of the property when the dog escaped and bit her, and we found that, based on the concession, Deitrich was entitled to summary judgment. Morehead, 932 N.E.2d at 1276-1277.

[15] The Court in Morehead further held that, to recover on a theory of negligence, a plaintiff must establish (1) the defendant's duty to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to that standard of care, and (3) an injury to the plaintiff proximately caused by the breach. Id. at 1277. “Although whether a duty exists usually is a question of law, the existence of a duty sometimes depends upon underlying facts that require resolution by the trier of fact, and this may include questions regarding who controlled property at the time and place of an accident.” Id. (citing Yates v. Johnson Cty. Bd. of Comm'rs, 888 N.E.2d 842, 847 (Ind. Ct. App. 2008)). The Court noted that “[i]mposition of a duty is limited to those instances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm,” id. at 1279 (citing Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991),² reh'g denied), and stated:

We agree that it is reasonably foreseeable that a vicious dog, upon escaping its house or yard and encountering a stranger on a sidewalk, may bite that stranger. We, however, cannot say that it is reasonably foreseeable that that dog indeed will escape its confinement. It is not the dog's mere presence on leased property that causes harm. Rather, it is the owner's failure to adequately confine that dog. Thus, we do not conclude that there is a high degree of foreseeability that leasing property to the owners of vicious dogs will result in injury to third parties.

Id. at 1280. The Court found no reasonable basis to impose a duty on Deitrich and affirmed the trial court's entry of summary judgment in his favor.³ Id.

[16] Here, Fairview conceded that the Nobles designated evidence showing that it had actual knowledge through its park manager that Bird and Thompson's dog exhibited dangerous propensities. Fairview also acknowledges that Bird and Thompson's dog crossed over the park's common areas which it maintained. See Appellee Fairview's Brief at 10 (stating the issue is landowner's liability when an animal “crosses landlord-maintained common areas to get to another tenant-maintained property”). “Common area” is “[t]he realty that all tenants may use though the landlord retains control and responsibility over it.” Black’s Law Dictionary 332 (10th ed. 2014). Unlike in Morehead, where the landowner leased a single-family dwelling to tenants who owned a dog, Fairview owned a mobile home park consisting of twenty-six mobile home lots, maintained and was responsible for the common areas of the park, and employed a park manager to oversee the property. Drawing all reasonable inferences from the evidence in the non-movant's favor, we conclude that reversal is warranted. See Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 39-40 (Iowa 1999) (landlord had duty to keep common areas reasonably safe by excluding dog known to have vicious propensities and jury could reasonably infer landlord allowed dog to roam over common backyard); Landlord's liability to third person for injury resulting from attack on leased premises by dangerous or vicious animal kept by tenant, 87 A.L.R.4th 1004 (Originally published in 1991) (section II.B. § 6[a] collecting cases supporting liability of landowners in actions to recover for injuries by parties attacked by dogs kept by landowner's tenants where landowners had actual or implied control over common areas of leased premises) (citing Lidster v. Jones, 176 Ga. App. 392, 336 S.E.2d 287 (1985) (reversing summary judgment where landlord of apartment complex did nothing to keep tenant's dog with vicious propensities out of the complex's common areas); McDonald v Talbott, 447 SW2d 84 (Ky. 1969) (reversing summary judgment where tenant lived in a building on property also occupied by a shop and office, a parking lot on the property was used by patrons of the shop and patrons had to walk near the tenant's back porch when walking to and from the parking lot, the tenant's daughter frequently visited and brought her dog, the dog was often kept on tenant's back porch, and the landowner received repeated complaints concerning the dog's vicious tendencies, and concluding that there was an issue of fact as to whether landowner took appropriate steps to guard against the attack on plaintiff despite the claim the dog was always kept on the porch)).

[17] For the foregoing reasons, we reverse the trial court's order granting summary judgment in favor of Fairview.

[18] Reversed.

[19] Forty-five years ago, our Supreme Court held that the duty to keep an animal confined lies with the animal's owner. Blake v. Dunn Farms, Inc., 413 N.E.2d 560 (Ind. 1980). Because the decision reached by the majority deviates from this rule, I respectfully dissent.

[20] An essential element of any negligence claim is that the defendant owed a duty of care to the plaintiff. Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Generally, whether a duty exists is a question of law for the courts to decide.⁴ Rhodes v. Wright, 805 N.E.2d 382, 386 (Ind. 2004). Our courts have long recognized that a landlord owes a duty of reasonable care to see that “ ‘the common ways and areas, or areas over which he has reserved control, are reasonably fit[.]’ ” Olds v. Noel, 857 N.E.2d 1041, 1044 (Ind. Ct. App. 2006) (quoting Rossow v. Jones, 404 N.E.2d 12, 14 (Ind. Ct. App. 1980)).

[21] And with respect to animals, our Supreme Court in Blake stated the general rule:

[I]t is the duty of the owner and the keeper of the animal to keep him confined, and the mere possession or ownership of land from which an animal strays is not sufficient to make the landowner liable, so long as the landowner is not the keeper of such animal. This is and has always been the law in Indiana. If the landowner is neither the owner nor keeper, he has no duty to confine or restrain the animal. If an animal is allowed by its keeper to escape from its confinement and harm results, that damage results from the negligent confinement, not from the condition of the land. To the extent that the condition of the land made it inadequate or unsuitable for confinement, the responsibility for selecting an adequate method of confinement is upon the keeper, not upon the landowner who neither owned nor kept the animal.

413 N.E.2d at 565 (citations omitted) (emphasis added). Fairview is clearly neither the owner nor the keeper of the Bird's and Thompson's dog. Thus, under the rule of Blake, Fairview has no duty to protect anyone from a dog it does not own or keep.

[22] This result is consistent with the cases from this Court. For example, in Goddard ex rel. Goddard v. Weaver, 558 N.E.2d 853 (Ind. Ct. App. 1990), a small child walked across a neighbor's yard in a trailer park while holding a sandwich. The neighbor's dog attacked and seriously injured the child. The child's parents filed a negligence claim against the neighbors who owned the dog as well as the owner of the trailer park. The trial court granted summary judgment in favor of the owner, and this Court affirmed. We recognized that a landlord has a duty to maintain common areas in a safe condition for tenants. Id. at 854. We also noted that, “in the absence of statute, covenant, fraud, or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by third persons upon the leased property.” Id. (citing Flott v. Cates, 528 N.E.2d 847, 848 (Ind. Ct. App. 1988)). Because it was clear in that case that the landlord did not have control over the property where the attack occurred, we held that he could not be liable for the injuries the child sustained. Id.; see also O'Connor ex rel. O'Connor v. Stewart, 668 N.E.2d 720 (Ind. Ct. App. 1996) (affirming grant of summary judgment in favor of landlord in negligence action brought by parent of child bitten by a dog on property owned by landlord but leased to the dog's owner because landlord did not retain control over the leased property).

[23] Morehead v. Deitrich, 932 N.E.2d 1272 (Ind. Ct. App. 2010), is entirely consistent with these cases. In that case, Deitrich owned a home that he rented to a couple who owned a large pit bull dog. Although the lease prohibited pets unless authorized by the landlord, Deitrich gave such authorization because the tenants had owned the dog for seven years and assured him that the dog was well behaved. The dog later attacked and bit Morehead, a mail carrier for the U.S. Postal Service. Morehead filed a complaint against Deitrich, and Deitrich moved for summary judgment on grounds that he did not retain any control over the property and did not know of the dog's vicious propensity. The trial court granted summary judgment in favor of Deitrich.

[24] On appeal, we noted that, “[i]n order to prevail against a landowner for the acts of a tenant's dog, the plaintiff must ‘demonstrate both that the landowner[ ] retained control over the property and had actual knowledge that the [dog] had dangerous propensities.’ ” Id. at 1276 (quoting Jones v. Kingsbury, 779 N.E.2d 951, 953 (Ind. Ct. App. 2002)).⁵ We also noted that:

“The question of whether a duty is owed in premises liability cases depends primarily upon whether the defendant was in control of the premises when the accident occurred. The rationale behind this rule is to subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm.”

* * * * *

However, “[a]ctual physical possession of property at the precise moment an accident happens is not always dispositive on the question of ‘control’ for premises liability purposes, if there was evidence that another party was in a better position to prevent the harm that occurred.

Id. at 1277 (quoting Yates v. Johnson Cnty. Bd. of Comm'rs, 888 N.E.2d 842, 847-48 (Ind. Ct. App. 2008)). The Morehead Court noted a long line of cases citing this rule.

[25] Morehead, however, asked this Court to ignore this well-established rule of law and instead hold that, by entering into a lease, a landlord establishes a relationship vis-à-vis the tenant's dog. Id. at 1279. We addressed this argument using the Webb v. Jarvis factors. Id. Under the Webb test, to determine whether a duty exists, a court must consider: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns. Id. at 997 (citing Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991)). Considering the first of these factors, we held:

We agree that it is reasonably foreseeable that a vicious dog, upon escaping its house or yard and encountering a stranger on a sidewalk, may bite that stranger. We, however, cannot say that it is reasonably foreseeable that that dog indeed will escape its confinement. It is not the dog's mere presence on leased property that causes harm. Rather, it is the owner's failure to adequately confine that dog. Thus, we do not conclude that there is a high degree of foreseeability that leasing property to the owners of vicious dogs will result in injury to third parties

Morehead, 932 N.E.2d at 1280 (emphasis added). Ultimately, we held that there was no reason to impose a duty upon Deitrich where, as a matter of law, no such duty existed. Id. We, therefore, affirmed the trial court's grant of summary judgment in Deitrich's favor. Id.

[26] I acknowledge that, here, the Nobles designated evidence sufficient to support a finding that Fairview had actual knowledge of the dog's dangerous propensities. The dog had gotten loose several times and attacked or fought with the Nobles’ dog. I part ways with the majority, however, regarding its conclusion that Fairview's control over the common areas of the trailer park is sufficient to establish a duty on Fairview.

[27] To be sure, this case is unlike Morehead, where the landlord leased a single-family home to the dog owner and retained no control at all over the premises. But this is a distinction without a legal difference. Fairview maintained control only over the common areas of the trailer park. But the dog did not escape from confinement on the common areas, nor did it attack the Nobles’ dog on the common areas. Instead, the dog escaped from Bird's and Thompson's property ⁶ and attacked the Nobles’ dog on the Nobles’ property. The only occurrence on the common areas that remained in Fairview's control is that the dog traversed over the common areas to get from Bird's and Thompson's property to the Nobles’ property. See Appellant's Br. p. 10 (framing the issue as whether a landowner is liable when an animal “crosses landlord-maintained common areas to get to another tenant-maintained property.”). The fact that the dog walked across the common areas controlled by Fairview is insufficient to impose a duty on Fairview.

[28] As we explained in Yates and Morehead, the rationale behind the requirement of control is “to subject to liability the person who could have known of any dangers on the land and therefore could have acted to prevent any foreseeable harm.” Morehead, 932 N.E.2d at 1277 (quoting Yates, 888 N.E.2d at 847). And “[a]ctual, physical possession of the property” is not always dispositive of the question of ‘control,’ ” because there may be evidence that “another party was in a better position to prevent the harm that occurred.” Id. (quoting Yates, 888 N.E.2d at 847).

[29] I fail to see how Fairview was in a “better position” than the dog's owners to prevent the harm that occurred, especially with regard to the common areas over which Fairview maintained control.⁷ Under Indiana law,⁸ Fairview owed no duty to Noble under these circumstances. Accordingly, the trial court properly granted summary judgment in favor of Fairview, and I respectfully dissent from the majority's conclusion otherwise.

FOOTNOTES

1.   The trial court also entered an order granting the Nobles’ motion for partial summary judgment on the issue of liability against Bird and Thompson. Bird and Thompson have not filed a brief in this appeal.

2.   The Indiana Supreme Court clarified in Goodwin v. Yeakle's Sports Bar & Grill, Inc., that a court's task in determining “duty” is “not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” 62 N.E.3d 384, 391 (Ind. 2016) (quoting Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197, 207 (2004)).

3.   The Court in Morehead also discussed Walker v. Ellis, 126 Ind. App. 353, 129 N.E.2d 65 (1955), and Blake v. Dunn Farms, Inc., 413 N.E.2d 560 (Ind. 1980), cited by the trial court. The Court stated “Morehead seems to argue that Deitrich had a duty ‘to prevent a dangerous condition’ under the theory of premises liability.” Morehead, 932 N.E.2d at 1277. The Court reviewed cases, including Walker, which “addressed liability arising from dangerous conditions on properties,” noted that a “dangerous condition” is defined as a “property defect creating a substantial risk of injury when the property is used in a reasonably foreseeable manner,” and declined to find the tenants’ dog was a “property defect.” Id. at 1278-1279. The Morehead Court also noted the comments in Blake that “it is the duty of the owner and the keeper of the animal to keep him confined, and the mere possession or ownership of land from which an animal strays is not sufficient to make the landowner liable,” and found Deitrich was not the owner or keeper of his tenants’ dog. Id. at 1279 (quoting Blake, 413 N.E.2d at 563).

4.   “A duty of care is created in one of three ways—by statute, at common law, or by assuming the duty.” KMC, LLC v. E. Heights Utils., Inc., 144 N.E.3d 773, 775 (Ind. Ct. App. 2020) (citation omitted). Here, the Nobles do not argue that Fairview had an assumed or statutory duty.

5.   Jones was in turn quoting Baker v. Weather ex rel. Weather, 714 N.E.2d 740, 741 (Ind. Ct. App. 1999).

6.   Whether Bird, Thompson, or the Nobles owned or leased the property is immaterial. It is clear that they, not Fairview, had control over the respective lots.

7.   This conclusion is also consistent with the public policy of our State. Our legislature has imposed a statutory duty on dog owners, and even then only in certain situations. Indiana Code Section 15-20-1-3 provides that “the owner of [a] dog is liable for all damages suffered by [a] person bitten,” if the dog, “without provocation, bites a person: (1) who is acting peaceably,” and “(2) who is in a location where the person may be required to be in order to discharge a duty imposed upon the person by” Indiana law, federal law, or postal regulations. This is true even if “(1) the dog has not previously behaved in a vicious manner,” or “(2) the owner has no prior knowledge of prior vicious behavior by the dog.” Id.

8.   I disagree with the non-Indiana cases cited by the majority to the extent that they would impose a duty on a landowner under these circumstances. Moreover, the appellate cases cited in the A.L.R. article cited by the majority are factually distinguishable, as the dog bites in those cases took place in the common areas controlled by the landlord. See Lidster v. Jones, 336 S.E.2d 287 (Ga. Ct. App. 1985) (child bitten by a tenant's dog while in the common area of an apartment complex); McDonald v. Talbott, 447 S.W.2d 84 (Ky. 1969) (plaintiff sustained injuries in publicly open areas of leased premises); Linebaugh v. Hyndman, 516 A.2d 638 (N.J. Super 1986) (child bitten by dog while playing in common area shared by tenants), aff'd by 524 A.2d 1255 (N.J. 1987); Castillo v. Cnty. of Santa Fe, 755 P.2d 48 (N.M. 1988) (child bitten by dog roaming the grounds of housing project owned by the county); Heitman v. Sky Meadows Trailer Park, 1989 WL 125381, at *1 (Ohio Ct. App. Oct. 23, 1989) (question of fact existed about whether dog bite occurred in common area of trailer park).

Brown, Judge.

Chief Judge Altice concurs. Judge Tavitas dissents with separate opinion. Altice, C.J., concurs. Tavitas, J., dissents with separate opinion.