Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 1 of 15

ATTORNEYS FOR APPELLANT

J. David Agnew

Lorch Naville Ward LLC

New Albany, Indiana

Kenneth Doane

Doane Law Office, LLC

Jeffersonville, Indiana 

ATTORNEYS FOR APPELLEE 

William H. Kelley

Thaddeus C. Kelley

Kelley Law Offices LLC

Bloomington, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Darlene Perkins,

Appellant-Plaintiff,

v.

Kathy Fillio,

Appellee-Defendant. 

February 19, 2019

Court of Appeals Cause No.

18A-PL-2278

Appeal from the Washington 

Circuit Court

The Hon. Larry Medlock, Judge

Trial Court Cause No. 

88C01-1703-PL-183

Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 2 of 15

Case Summary1

[1] When Kathy Fillio left her Salem home in 2016 to spend some time in Florida, 

she left it and her animals under the care of her half-brother Dennis Slate. 

When a goat became ill, Slate called Darlene Perkins for help. As Perkins bent 

over to help the ill goat, a ram headbutted her, causing her to fall and break her 

arm or wrist. Perkins sued Fillio for negligence, both parties moved for 

summary judgment on the question of liability, and the trial court entered 

summary judgment in favor of Fillio. The trial court reasoned that Fillio had 

no way of knowing that Perkins would be on her property or that the ram had 

any dangerous propensities. Perkins argues that the trial court should have 

instead entered summary judgment in favor of her or, at the very least, that 

there is a genuine issue of material fact which precludes the entry of summary 

judgment in favor of Fillio. Because we conclude that Perkins’s designated 

evidence does indeed generate a genuine issue of material fact as to Fillio’s 

potential liability, we reverse and remand for further proceedings. 

Facts and Procedural History

[2] Fillio owns a home on land in Salem (“the Property”), on which she has, at 

various times, kept horses, cows, steers, sheep, goats, chickens, dogs, cats, and 

 

1

 We heard oral argument in this case on January 28, 2019, at Ben Davis High School in Indianapolis, 

hosted by the Area 31 Career Center. We would like to thank the faculty, staff, and students of Ben 

Davis and Area 31 for their hospitality and counsel for the high quality of their oral and written 

advocacy. 
Court of Appeals of Indiana | Opinion 18A-PL-2278 | February 19, 2019 Page 3 of 15

guinea pigs. Fillio spends roughly half of her time at the Property and the other 

half at a home in Florida. In August of 2016, Fillio was in Florida and left 

Slate in charge of caring for her animals. Fillio later indicated that Slate’s 

responsibilities were limited to feeding and watering the animals. While Fillio 

was gone, a female goat fell ill, and Slate unsuccessfully tried to contact Fillio 

by telephone. On August 21, 2016, Slate contacted Perkins for help because she 

had more experience with farm animals, and Perkins agreed to come to the 

Property. When Perkins arrived, she saw the bleating goat on the ground in a 

pen with other animals, including a sheep. Slate invited her into the pen, and 

they loaded the goat onto a cart. Slate pulled the cart while Perkins followed

behind, trying to keep the goat’s head inside. As it happens, the sheep in the 

pen was a ram, i.e., an uncastrated male sheep. As Perkins bent over to assist 

the female goat, the ram headbutted her, knocking her to the ground and 

breaking her arm or wrist. Perkins’s injuries required two surgeries. 

[3] On March 13, 2017, Perkins sued Fillio for negligence. On May 5, 2018, Fillio 

moved for summary judgment. Fillio designated portions of hers and Perkins’s 

depositions. On May 3, 2017, Perkins filed a response in which she also moved 

for summary judgment on the question of liability, also designating portions of 

hers and Fillio’s depositions as well as affidavits from herself and from Dr. 

Dwayne Allen, DVM. 

[4] According to Dr. Allen’s affidavit, rams are generally territorial and tend to 

defend themselves, their territory, and females perceived to be in their herd by 

headbutting unfamiliar animals or persons, tendencies of which sheep farmers 
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are generally aware. Perkins averred that she was aware that there was a sheep 

in the pen but was not aware that it was a ram because it had no visible horns. 

Perkins also averred that she had never owned a sheep or ram and was not 

familiar with their natural propensities and that Slate had never warned her that 

a ram might be protective and territorial toward an animal which it perceived to 

be part of its herd. Fillio’s testimony makes it clear that she knew that the sheep 

she owned was, in fact, a ram, despite its lack of horns. 

[5] On August 29, 2018, the trial court entered summary judgment in favor of 

Fillio: 

[H]aving heard arguments on Defendant’s Motion for Summary 

Judgement and being duly advised [the trial court] NOW FINDS 

AND ORDERS:

1. That Kathy Fillio made arrangements to have her 

brother feed her “domestic” livestock while she was 

absent.

2. Domestic animal is defined in I.C. 15-17-2-26.

3. There was a lack of evidence indicating that the 

Defendant knew the Plaintiff would be on her real 

estate in particular inside the area where the Plaintiff

kept the ram and other sheep.

4. That there was no evidence that the ram had been 

aggressive toward anyone in the past.

5. That the Defendant has not violated a duty of care to 

the Plaintiff.

WHEREFORE, the Motion for Summary Judgment is hereby 

GRANTED in favor of the Defendant and against the Plaintiff.

Appellant’s App. Vol. II p. 7. 
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Discussion and Decision

[6] The trial court entered summary judgment in favor of Fillio. The standard of 

review of a summary judgment order is well-settled. Summary judgment is 

appropriate 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 judgment as 

a matter of law. Ind. Trial Rule 56(C); Spudich v. N. Ind. Pub. Serv. Co., 745 

N.E.2d 281, 289 (Ind. Ct. App. 2001). Summary judgment will be granted 

where the evidence presented demonstrates that no genuine issue of material 

fact exists, entitling the moving party to judgment as a matter of law. Ind. Trial 

Rule 56(C). Summary judgment is intended to end litigation about which there 

can be no factual dispute. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind. Ct. 

App. 1995) (citing Liberty Mut. Ins. Co. v. Metzler, 586 N.E.2d 897, 899 (Ind. Ct. 

App. 1992)). Once the movant for summary judgment has established that no 

genuine issue of material fact exists, the nonmovant may not rest on her 

pleadings but must set forth specific facts which show the existence of a genuine

issue for trial. Wade v. Norfolk & W. Ry. Co., 694 N.E.2d 298, 301 (Ind. Ct. App. 

1998).

[7] We are bound by the same standard as the trial court and will consider only 

those matters which were designated at the summary judgment stage. Spudich, 

745 N.E.2d at 290. We will not reweigh the evidence but will liberally construe

all designated evidentiary material in the light most favorable to the nonmoving 

party to determine whether there is a genuine issue of material fact for trial. Id. 

The party who lost at the trial court has the burden to persuade the appellate 
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court that the trial court erred. Id. A trial court’s grant of summary judgment is 

clothed with a presumption of validity. Wicker v. McIntosh, 938 N.E.2d 25, 28 

(Ind. Ct. App. 2010). A grant of summary judgment may be affirmed by any 

theory supported by the designated materials. Id. However, a trial court’s grant

of summary judgment may not be reversed on a ground which was not 

presented to the trial court. Nance v. Miami Sand & Gravel, 825 N.E.2d 826, 834 

(Ind. Ct. App. 2005). 

[8] Perkins sued Fillio for negligence, a tort that requires proof of “(1) a duty owed 

by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the 

plaintiff resulting from the defendant’s breach.” Rhodes v. Wright, 805 N.E.2d 

382, 385 (Ind. 2004). “Negligence will not be inferred; rather, all of the 

elements of a negligence action must be supported by specific facts designated 

to the trial court or reasonable inferences that might be drawn from those 

facts.” Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind. Ct. App. 2002). “An 

inference is not reasonable when it rests on no more than speculation or 

conjecture.” Id. “A negligence action is generally not appropriate for disposal 

by summary judgment.” Id. “However, a defendant may obtain summary 

judgment in a negligence action when the undisputed facts negate at least one 

element of the plaintiff’s claim.” Id. 

I. Premises Liability

[9] Perkins argues that the trial court should have concluded, as a matter of law,

that Fillio was negligent for not taking measures adequate to ensure that her 
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ram did not injure invitees2such as Perkins. As a general rule, “a landowner 

owes the highest duty to an invitee: a duty to exercise reasonable care for his 

protection while he is on the landowner’s premises.” Burrell v. Meads, 569 

N.E.2d 637, 639 (Ind. 1991). 

The best definition of this duty comes from the Restatement 

(Second) of Torts § 343 (1965):

A possessor of land is subject to liability for physical harm 

caused to his invitees by a condition on the land if, but only if, 

he

(a) knows or by the exercise of reasonable care would 

discover the condition, and should realize that it involves 

an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the 

danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against 

the danger.

Id. at 639–40. 

 

2

 Fillio concedes that Perkins was invited upon the property by Slate but does not concede that she was an 

invitee of Fillio. In our view, this distinction does not help Fillio, as it was foreseeable that Slate might have 

to invite others onto the Property to help care for the animals. In fact, Fillio was aware Slate had done this in

2013, when Slate invited Perkins onto the Property to assist him with a sick steer. Although Fillio denied 

that she knew Perkins was the person Slate invited onto the Property, she was aware that he had invited 

someone in the past. 
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[10] Indiana law also specifically addresses the question of liability for injury caused 

by domestic animals:

3

 

[t]he owner of a domestic animal is not liable for injuries caused 

by the animal unless the animal had dangerous propensities 

known, or which should have been known, to the owner. Burgin v. 

Tolle (1986), Ind. App., 500 N.E.2d 763; Doe v. Barnett (1969), 145 

Ind. App. 542, 251 N.E.2d 688. A dangerous propensity is “a 

propensity or tendency of an animal to do any act which might 

endanger the safety of person or property in a given situation.” 

Weaver v. Tucker (1984), Ind. App., 461 N.E.2d 1159, 1161 

(citation omitted). If an individual animal lacks dangerous 

propensities, “the rule is simply that the owner of a domestic 

animal is bound to know the natural propensities of the particular 

class of animals to which it belongs.” Burgin, supra, 500 N.E.2d at 

766. In either event, the owner must exercise reasonable care to 

guard against the propensities and to prevent injuries reasonably 

anticipated from them. Borton v. Lavenduskey (1985), Ind. App., 

486 N.E.2d 639, reh’g. denied, 488 N.E.2d 1129, trans. denied.

Forrest v. Gilley, 570 N.E.2d 934, 935 (Ind. Ct. App. 1991), trans. denied. 

[11] As the Indiana Supreme Court has explained in a dog-bite case, 

whether the owner or keeper of the animal is aware of any vicious 

propensity, the legal description of the duty owed is the same: that 

 

3

 It is undisputed that the ram that caused Perkins’s injuries qualifies as a domestic animal under Indiana 

law:

(a) “Domestic animal” means an animal that is not wild

(b) The term is limited to:

(1) cattle, calves, mules, swine, sheep, goats, dogs, cats, poultry, ostriches, rhea, emus, or 

other birds [or]

(2) an animal of the bovine, equine, ovine, caprine, porcine, canine, feline, avian, camelid, 

cervidae, or bison species[.]

Ind. Code § 15-17-2-26. 
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of reasonable care under the circumstances. Reasonable care 

requires that the care employed and the precautions used be 

commensurate with the danger involved under the circumstances 

of a particular case. The safeguards to be used, the precautions to 

be observed and the foresight to be exercised differ in each case, 

and are usually matters to be resolved by the jury. 

Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (citation omitted). 

[12] Pursuant to Forrest and Ross, then, a duty to protect against harm caused by 

domestic animals can be established by one (or both) of the following: (1) a 

defendant’s knowledge that a particular animal has a propensity for violence or 

(2) a defendant’s ownership of a member of a class of animals that are known to 

have dangerous propensities, as the owner of such an animal is bound to have 

knowledge of that potential danger. See Forrest, 570 N.E.2d at 935. 

[13] Fillio’s argument is that the owner of a domestic animal that causes injury 

cannot be held liable in the absence of specific knowledge that the animal in 

question has exhibited dangerous tendencies. As we have seen, however, a lack 

of that specific knowledge does not necessarily relieve a domestic animal owner 

of liability. Fillio relies on language indicating that “‘[o]wners of domestic 

animals may [...] be held liable for harm caused by their pet but only if the 

owner knows or has reason to know that the animal has dangerous 

propensities.’” Gruber v. YMCA of Greater Indpls., 34 N.E.3d 264, 267 (Ind. Ct. 

App. 2015) (quoting Poznanski ex rel. Poznanski v. Horvath, 788 N.E.2d 1255, 

1259 (Ind. 2003) (emphasis supplied by Gruber court removed)). This language, 

originally from the Indiana Supreme Court’s decision in Poznanski, does not 
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exclude binding an animal owner with knowledge that her animal belongs to a 

class of animals known to have dangerous propensities. The Court’s 

pronouncement specifically includes those owners who know or have reason to 

know that their domestic animal has dangerous propensities, which would 

include those without specific knowledge about a particular animal. Indeed, in 

the very case on which Fillio relies, we affirmed the grant of summary judgment 

in favor of the owner of a pig which had bitten a person only because (1) “the 

evidence designated at summary judgment show[ed] that [...] the pig had never 

injured anyone or exhibited any dangerous propensities, including on the day in 

question” and (2) “the plaintiffs designated no evidence that the particular breed to 

which the pig belonged has dangerous propensities.” Gruber, 34 N.E.3d at 267–68

(emphasis added). 

[14] Here, while Perkins did not designate any evidence that the ram had ever 

exhibited any dangerous tendencies of which Fillio was aware, she did 

designate evidence that rams, as a class, do have dangerous tendencies, at least 

under certain circumstances. Specifically, Perkins designated Dr. Allen’s 

affidavit, in which he averred that rams are generally territorial and tend to 

defend themselves, their territory, and females perceived to be in their herd by 

headbutting unfamiliar animals or persons. This evidence generates a genuine 

issue of material fact as to the dangerous tendencies of rams, which, if true, 

Fillio is bound to have known. This would in turn generate a genuine issue as 

to whether Fillio took reasonable precautions under the circumstances to 

prevent the ram from causing injury to invitees on her land. We conclude that 
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the trial court erred in entering summary judgment in favor of Fillio on 

Perkins’s premises-liability claim. 

II. Negligent Entrustment and/or Supervision

A. Entrustment

[15] Perkins also contends that Fillio, as a matter of law, is liable under a theory of 

negligent entrustment. 

To prove a claim of negligent entrustment, a plaintiff must prove: 

(1) an entrustment; (2) to an incapacitated person or one who is 

incapable of using due care; (3) with actual and specific 

knowledge that the person is incapacitated or incapable of using 

due care at the time of the entrustment; (4) proximate cause; and, 

(5) damages. Brewster v. Rankins, 600 N.E.2d 154, 158–59 (Ind. 

Ct. App. 1992). 

Hardsaw v. Courtney, 665 N.E.2d 603, 606 (Ind. Ct. App. 1996). The gist of 

Perkins’s argument is that Fillio was negligent, as a matter of law, for entrusting 

the care of her animals to Slate. At issue is whether (1) Slate was incapable of 

using due care to protect invitees from the animals and (2) whether Fillio 

actually knew Slate to be incapable of using due care. 

[16] Perkins designated evidence that Slate was in poor health and knew nothing 

about caring for farm animals. Even if we assume that this is enough to 

establish an incapacity to protect invitees from Fillio’s animals, Perkins has 

failed to designate any evidence that Fillio had specific and actual knowledge of 

this incapacity. We conclude that the trial court correctly entered summary 
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judgment in favor of Fillio to the extent that Perkins made a claim of negligent 

entrustment. 

B. Supervision 

[17] Perkins contends that Fillio, as a matter of law, is liable pursuant to a theory of 

negligent supervision of her agent Slate. Perkins points to designated evidence 

that Fillio had Slate look after her animals despite leaving him no instructions 

for addressing an emergency, leaving no funds to pay a veterinarian should one 

become necessary, and making herself difficult to contact. At the outset, it is 

worth noting that Perkins bases this argument, in part, on Section 7.05 of the 

Third Restatement of Agency, which provides that “[a] principal who conducts 

an activity through an agent is subject to liability for harm to a third party 

caused by the agent’s conduct if the harm was caused by the principal’s

negligence in selecting, training, retaining, supervising, or otherwise controlling 

the agent.” RESTATEMENT (THIRD) OF AGENCY § 7.05 (AM. LAW. INST. 2006). 

This provision, however, has never been adopted by Indiana courts, and, in 

fact, the Indiana Supreme Court recently rejected an invitation to do so, albeit 

in the slightly different context of a negligent hiring claim. See Sedam v. 2JR 

Pizza Enters., LLC, 84 N.E.3d 1174, 1179 (Ind. 2017) (“Although the 

Restatement (Third) of Agency [section 7.05] may find otherwise, Indiana has 

developed a line of precedent according to [Tindall v. Enderle, 162 Ind. App. 

524, 320 N.E.2d 764 (1974)] and section 317 of the Restatement (Second) of 

Torts [regarding negligent hiring claims], and we find no reason to upset 

reliance on this point.”) (footnote omitted). 
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[18] Moreover, the case cited by Perkins to support her negligent supervision claim, 

Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009), addresses the negligent 

retention and supervision of an employee, and there is no designated evidence 

that Slate was an employee of Fillio’s. See id. at 257 (“Negligent retention and 

supervision is a distinct tort from respondeat superior; it may impose liability on 

an employer when an employee ‘steps beyond the recognized scope of his [or 

her] employment to commit a tortious injury upon a third party.’”) (citation 

omitted). We conclude that Perkins has failed to produce sufficient authority to 

support her argument that Fillio may be held liable for negligent supervision of 

Slate.

4

 

III. Vicarious Liability

[19] Finally, Perkins contends that Fillio should be held vicariously liable for the 

negligence of Slate, her agent, even if she were not herself negligent. Section 

214 of the Second Restatement of Agency provides as follows:

A master or other principal who is under a duty to provide 

protection for or to have care used to protect others or their 

property and who confides the performance of such duty to a 

servant or other person is subject to liability to such others for 

harm caused to them by the failure of such agent to perform the 

duty.

RESTATEMENT (SECOND) OF AGENCY § 214 (AM. LAW. INST. 1958). 

 

4

 In any event, this claim, at least as stated here, is arguably indistinguishable from Perkins’s claim of 

negligent entrustment. 
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[20] Fillio argues that Perkins failed to argue this ground in the trial court and may 

not now raise it for the first time on appeal. We agree that Perkins has waived 

the issue for appellate review. See, e.g., Nance, 825 N.E.2d at 834 (“[A] trial 

court’s grant of summary judgment may not be reversed on a ground which was 

not presented to the trial court.”). Moreover, Perkins does not seem to claim, 

even on appeal, that Slate was negligent, much less point to any designated 

evidence that would support such a conclusion. Without the underlying 

negligence of the agent, there can be no vicarious liability. 

Conclusion

[21] We conclude that the trial court erred in granting summary judgment in favor 

of Fillio on Perkins’s premises liability claim. Perkins designated evidence that 

rams have dangerous tendencies as a class of animals, knowledge with which 

Fillio would be charged pursuant to Indiana law, if true. There is, therefore, a 

genuine issue of material fact as to whether rams are dangerous as a class of 

animals and, if so, a genuine issue as to whether Fillio took reasonable 

measures to prevent the ram from causing harm to invitees like Perkins. 

Perkins, however, did not designate evidence sufficient to generate a genuine 

issue of material fact as to negligent entrustment or negligent supervision. 

Finally, Perkins did not preserve her claim of vicarious liability for appellate 

review, a claim that is not supported by any designated evidence of underlying 

negligence in any event. 

[22] We reverse the judgment of the trial court and remand for further proceedings. 
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Kirsch, J., and Altice, J., concur.