FedEx driver secures COA reversal against dog owners

A FedEx driver bit by a dog despite the owners’ assurance that he was safe to deliver a package has secured a reversal from the Court of Appeals of Indiana. The appellate panel found questions remained about whether the owners knew their dog’s breed had dangerous propensities when the deliveryman was invited onto their property.

While on a delivery run, Indiana FedEx driver Damon Daniels drove up to a rural home in Brookville to deliver a package.

Although the deliveryman was assured by the the owner their dog wouldn’t bite him, that’s exactly what happened.

As Daniels tried to hand the package to the homeowner, Max, a 2-year-old Great Dane, bit the driver in the abdomen. The bite left three puncture wounds to Daniels’ abdomen and a 1-centimeter laceration to his abdominal wall, as well as a hematoma and substantial swelling that required an overnight hospital stay.

According to Max’s owner, Jeffrey and Lisa Drake, the dog had no previous incidents with biting. Before the incident, Lisa had indicated to Daniels with a thumbs-up that he was good to get out of his truck when he asked if the dog was “OK.”

Daniels sued for damages related to the dog bite and the Drakes filed a motion for summary judgment and designated their own depositions and an affidavit from Max’s veterinarian. The Drakes also sought to establish that they did not have actual knowledge of any dangerous or vicious propensities of Max beforehand.

For his part, Daniels offered evidence from canine behavioral expert and animal control officer Robert Brandau. Based on the expert’s education, training, and experience, he offered that Great Danes were “bred to be guard dogs” and “have a natural propensity to be weary of strangers” and to be “territorial.”

Brandau also noted that isolation “will increase the territorial aggressive tendencies of a dog,” noting that the Drakes live on 16 acres with no neighbors.

The Franklin Circuit Court ruled for the Drakes, but the appellate panel reversed after finding a genuine issue of material fact existed as to whether the Drakes had actual or constructive knowledge of their dog’s dangerous or vicious propensities.

The appellate court found that, while novel, the Drakes’ argument raised for the first time on appeal was also unpersuasive. Specifically, they alleged that Brandau’s specialized knowledge as a canine behavioral expert is “immaterial” and cannot be used as evidence of what they should have known about Great Danes’ alleged tendency to be territorial, as lay people and thus, potentially dangerous to strangers coming onto their property.

“To overcome summary judgment, Daniels needed to present some evidence that Great Danes have dangerous propensities under certain circumstances,” Judge Robert Altice wrote. “Brandau’s affidavit cleared this low bar.”

“In sum, while Daniels did not designate any evidence that Max had previously exhibited any dangerous tendencies of which the Drakes were aware, Daniels did designate evidence that Great Danes, as a class, have dangerous territorial tendencies, at least under certain circumstances. This evidence created a genuine issue of material fact as to the dangerous tendencies of Great Danes, which, if true, the Drakes are bound to have known,” Altice continued.

“This would, in turn, generate a genuine issue as to whether the Drakes took reasonable precautions under the circumstances to prevent Max from causing injury to Daniels, an invitee on their land. Accordingly, the trial court erred in granting the Drakes’ motion for summary judgment.”

This article was first published in The Indiana Lawyer.

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