Court of Appeals of Indiana | Memorandum Decision 20A-CT-94 | September 10, 2020 Page 1 of 18

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Bryce H. Bennett

Justin O. Sorrell

Drake T. Land

Riley Bennett Egloff LLP 

Indianapolis, Indiana

ATTORNEYS FOR APPELLEES

Andrew A. Crosmer

Daniel J. Zlatic

Rubino, Ruman, Crosmer & 

Polen, LLC

Dyer, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Penske Truck Leasing Co., L.P.,

Appellant-Defendant,

v.

Debra Dalton-McGrath and 

John McGrath, 

Appellees-Plaintiffs.

September 10, 2020 

Court of Appeals Case No. 

20A-CT-94 

Interlocutory Appeal from the 

Lake Superior Court 

The Honorable Kristina C. Kantar, 

Judge 

Trial Court Cause No. 

45D04-1801-CT-18

Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CT-94 | September 10, 2020 Page 2 of 18

Case Summary

[1] On November 4, 2017, Debra McGrath was bitten by a dog when she visited 

Julie’s Auto Sales (“JAS”) for the purpose of renting a moving truck. The truck 

in question was owned by Penske Truck Leasing Co., L.P (“Penske”), and 

rented through JAS. Debra and her husband John (collectively, “the 

McGraths”) subsequently filed suit against Julie Dirindin, JAS, and Penske, 

alleging negligence. With respect to Penske, the McGraths argued both direct 

and vicarious liability. Penske moved for summary judgment. This 

interlocutory appeal follows the denial of Penske’s motion. Penske contends 

that the trial court erred in denying its motion for summary judgment, arguing 

that no issues of material fact remain that would preclude summary judgment 

on either the direct- or vicarious-liability claims. We affirm in part, reverse in 

part, and remand for further proceedings.

Facts and Procedural History

[2] At all times relevant to this interlocutory appeal, Dirindin owned and operated 

JAS. JAS offered vehicle rentals, including moving trucks owned by Penske. 

In answers to interrogatories designated in support of Penske’s motion for 

summary judgment, Dirindin described the events surrounding the dog bite as 

follows:
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I left my home before 8:00 a.m. with Cam[1] and went to the office. 

I took care of small tasks, while I waited for Debra McGrath to 

arrive for her 9:00 a.m. reservation. Debra McGrath called a little 

after 9:00 a.m. to say that she was delayed. I advised her that I 

would be closing the office at 10:00 a.m. Shortly after 10:00 a.m., I 

locked the door, put up the closed sign, took Cam for a walk and 

loaded up my car. I brought Cam back into the office and locked 

and closed the door behind me. At approximately 10:20 a.m. Debra 

McGrath pulled the door open, which was locked but apparently it 

was not fully shut. It startled me and as Debra McGrath held the 

door open and stood in the doorway Cam ran and bit her in her leg.

Appellant’s App. Vol. II p. 67.

[3] In early 2018, the McGraths filed suit against Dirindin and JAS. On November 

7, 2018, the McGraths filed an amended complaint in which they argued that 

Penske was directly negligent and vicariously liable for Dirindin’s negligence. 

Penske moved for summary judgment. The trial court denied Penske’s motion 

for summary judgment on November 25, 2019. 

Discussion and Decision

[4] Penske contends that the trial court erroneously denied its motion for summary 

judgment. 

When reviewing a grant or denial of a motion for summary 

judgment our well-settled standard of review is the same as it is 

for the trial court: whether there is a genuine issue of material 

fact, and whether the moving party is entitled to judgment as a 

matter of law. The party moving for summary judgment has the 

1

 On November 4, 2017, Dirindin was caring for Cam, a pit-bull mix owned by her daughter who was 

attending college at St. Mary’s College in South Bend. 
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burden of making a prima facie showing that there is no genuine 

issue of material fact and that the moving party is entitled to 

judgment as a matter of law. Once these two requirements are 

met by the moving party, the burden then shifts to the nonmoving party to show the existence of a genuine issue by setting 

forth specifically designated facts. Any doubt as to any facts or 

inferences to be drawn therefrom must be resolved in favor of the 

non-moving party. Summary judgment should be granted only if 

the evidence sanctioned by Indiana Trial Rule 56(C) shows there 

is no genuine issue of material fact and that the moving party 

deserves judgment as a matter of law.

Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)

(internal citations omitted).

I. Direct Liability

[5] Penske contends that the trial court erred in denying its motion for summary 

judgment on the McGraths’ direct-liability claim. In claiming that Penske was 

directly liable for Debra’s injuries, the McGraths alleged that Penske “was 

negligent in permitting its agent to keep an unleashed or unrestrained dog on 

the business premises where Penske customers were exposed to this 

unnecessary risk of harm.” Appellant’s App. Vol. II p. 42. The McGraths 

further allege that they “were injured and suffered damages” as a result of 

Penske’s negligence. Appellant’s App. Vol. II p. 42.

[6] “To prevail on a claim of negligence the plaintiff must show: (1) duty owed to 

plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the 

applicable standard of care; and (3) compensable injury proximately caused by 

defendant’s breach of duty.” Goodwin, 62 N.E.3d at 386 (internal quotation and 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-94 | September 10, 2020 Page 5 of 18

brackets omitted). “Absent a duty there can be no negligence or liability based 

upon the breach.” Id. “Whether a duty exists is a question of law for the court 

to decide.” ONB Ins. Grp., Inc. v. Estate of Megel, 107 N.E.3d 484, 489 (Ind. Ct. 

App. 2018), trans. denied. We therefore review de novo whether Penske owed a 

duty to the McGraths. See id. Further, “[n]egligence 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. Premises Liability

[7] It is undisputed that Penske could not be directly liable to the McGraths as the 

dog’s keeper or owner. The designated evidence clearly establishes that 

Dirindin was the dog’s keeper and her daughter was the dog’s owner. The 

McGraths instead rely on the theory of premises liability, asserting that a 

question of material fact remains as to whether Penske had sufficient control 

over the JAS premises to create a duty for Penske to act to prevent foreseeable 

harm. In order to prevail on their claim against Penske, the McGraths were 

required to prove that Penske “retained control over the property” and “had 

actual knowledge of” the dog’s dangerous propensities. See Baker v. Weather ex 

rel. Weather, 714 N.E.2d 740, 741 (Ind. Ct. App. 1999) (providing that in order 

for plaintiffs to prevail against landlords under a theory of premises liability on 

a claim of negligence relating to a dog bite by a dog neither owned or cared for 
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by the landlords, the plaintiffs were required to show that the landlords retained 

control over the property and had actual knowledge that the dog had dangerous 

propensities). 

[8] “When a case involves a non-owner, liability turns upon the degree of control 

such person or entity exercises over the premises.” Johnson v. Steffen, 685 

N.E.2d 1117, 1119 (Ind. Ct. App. 1997). “The reasons the law imposes liability 

on the person who controls the property is self-evident: only the party who 

controls the land can remedy the hazardous conditions which exist upon it and 

only the party who controls the land has the right to prevent others from 

coming onto it.” City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 411 (Ind. 

Ct. App. 1987). “Thus, the party in control of the land has the exclusive ability 

to prevent injury from occurring.” Id. The dispositive question is therefore 

whether Penske exercised sufficient control over the JAS premises so as to be 

deemed the possessor. See Crist v. K-Mart Corp., 653 N.E.2d 140, 145 (Ind. Ct. 

App. 1995). If Penske had control over the premises, then it owed a duty to its 

invitees to exercise reasonable care for their protection while on the premises. 

See id. However, if Penske had no control over the premises, it owed no duty to 

the McGraths. See id.; see also Cox v. Stoughton Trailers, Inc., 837 N.E.2d 1075, 

1082 (Ind. Ct. App. 2005) (“[P]remises liability cases generally have required an 

owner of property to have some degree of actual control over the property—not 

merely constructive ability to control—in order for a duty to prevent injury to 

attach to the owner.”).
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[9] The designated evidence shows that JAS and Penske entered into an agreement 

(“the Agency Agreement”) on December 12, 2012, which granted JAS the nonexclusive right to rent Penske-owned trucks to the public. With regard to JAS’s 

premises, the Agency Agreement provided, in relevant part, as follows:

III. Agent Premises

A. Hours of Operation. Agent agrees to conduct its rental 

business, as contemplated by this Agreement, for a minimum of 

six days a week during normal business hours plus additional 

hours (1) as required by business demands; (2) in accordance 

with the provisions of the Agreement or the Rental Agreement; 

and/or (3) as otherwise required by Penske.

B. Appearance and Upkeep. Agent shall, at its own cost and 

expense, maintain the Premises in a clean and presentable 

manner and in such a way as to contribute to the goodwill of the 

Penske name. Agent will make all improvements or 

modifications as reasonably required by Penske to maintain a 

suitable appearance at the Premises.

C. Penske Access to Premises and Equipment; Redistribution of Equipment. Agent shall make its Premises 

available for Penske representatives, with or without notice, to 

audit, inspect, or repair Equipment, signs and supplies and other 

Penske-owned or supplied property or any records related 

thereto. In addition, Agent agrees that Penske may come onto 

the Premises at any time to remove Equipment. Agent shall 

strictly comply with all of Penske’s instructions regarding redistribution of Equipment as described in Section II, Paragraph 

D.

D. Safeguarding of Equipment. Agent shall ensure that all 

Equipment is legally parked. Agent shall protect all Penske 

Equipment, supplies, and property at the Premises. Agent shall 
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not be responsible for any lost or stolen Equipment, Penskeprovided supplies or property, or any vandalism thereto if Agent 

took all reasonable measures to secure and protect the 

Equipment and Penske-provided supplies and property. Penske 

reserves the right to cancel this Agreement in the event of any 

persistent problems with vandalism or damage to Equipment, 

regardless of fault and regardless of preventative measures taken 

by Agent.

Appellant’s App. Vol. II p. 63. Thus, pursuant to the terms of the Agency 

Agreement, JAS was required to allow Penske access to the premises, with or 

without notice, “to audit, inspect, or repair Equipment, signs and supplies and 

other Penske-owned or supplied property or any records related thereto” and 

“at any time to remove” Penske-owned equipment. Appellant’s App. Vol. II p. 

88. In addition, the Agency Agreement required JAS to maintain the premises 

in “a clean and presentable manner” and to take “all reasonable measures to 

secure and protect the Equipment and Penske-provided supplies and property.” 

Appellant’s App. Vol. II p. 88.

[10] Dirindin testified that a Penske representative visited JAS “approximately two, 

three times a year” to review “what business has been done and what the 

numbers are.” Appellant’s App. Vol. II p. 49. During one of these visits, which 

would last approximately twenty minutes, the Penske representative would 

“compare your business from last year to this year” and “update you on any ... 

new things that they are doing[.]” Appellant’s App. Vol. II p. 51. In addition, 

Mary Ann Angelo, a litigation claims examiner for Penske, averred that 
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9. Penske issued no command or instruction to Dirindin, 

actual or implied, regarding keeping animals at [JAS].

10. Penske had never seen an unrestrained dog at [JAS] at any 

time.

11. Penske had no knowledge that Dirindin kept her 

daughter’s dog on the premises at [JAS] on or before November 

4, 2017.

12. Penske had no knowledge of the existence, breed 

propensities, history, or methods of confinement of the dog that 

was at [JAS] on November 4, 2017.

Appellant’s App. Vol. II p. 85. 

[11] Penske argues that the designated evidence shows that there is no issue of 

material fact as to whether Penske had control over JAS’s premises. Penske 

acknowledges that while it had a right to enter the premises for the purposes set 

forth above, its right was limited to Penske-owned and supplied property and 

did not grant it control over the JAS premises in general or over any other part 

of JAS’s business. Further, while Penske did not have a policy relating to 

having animals on the premises, nothing in the designated evidence indicates or 

even suggests that Penske had the authority or ability to prevent Dirindin from 

keeping dogs and other animals on the premises. 

[12] The McGraths argue that Penske’s limited right to enter the premises and exert 

control over Penske-owned and supplied property creates a question of fact as 

to whether Penske exerted the necessary level of control to create a duty. We 

cannot agree. While the designated evidence establishes that Penske had a 
Court of Appeals of Indiana | Memorandum Decision 20A-CT-94 | September 10, 2020 Page 10 of 18

limited right to enter the premises and control over Penske-owned and supplied 

property, nothing in the designated evidence indicates that Penske had control 

over the premises itself or any non-Penske-owned or supplied property. 

B. Goodwin Test for Determining Duty

[13] Penske further argues that there is no material issue of fact relating to whether it 

otherwise owed a duty to the McGraths under Indiana law. In Goodwin, the 

Indiana Supreme Court established a three-part balancing test for determining 

whether a duty exists when one has not otherwise been established by law. 62 

N.E.3d at 387; see also ONB, 107 N.E.3d at 489. Under this test, we consider: 

(1) the relationship between the parties, (2) the reasonable foreseeability of 

harm, and (3) public policy concerns. Goodwin, 62 N.E.3d at 387; see also ONB, 

107 N.E.3d at 489. 

1. Relationship Between Parties

[14] Generally, a duty of reasonable care is not owed to the world at large, but 

instead arises out of a relationship between the parties. See Williams v. Cingular 

Wireless, 809 N.E.2d 473, 476 (Ind. Ct. App. 2004), trans. denied. In this case, to 

the extent that a relationship existed between Penske and the McGraths, the 

relationship was indirect and limited. The undisputed designated evidence 

demonstrates that Debra contacted JAS to rent a moving truck. Debra visited 

JAS on November 4, 2017, for the purpose of renting the truck. The Agency 

Agreement clearly stated that neither Dirindin nor any other JAS employee 

could be construed as employees of Penske. The McGraths were not parties to 
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the Agency Agreement which created “the limited, non-exclusive agency 

relationship between” JAS and Penske. Appellant’s App. Vol. II p. 87. 

Further, there is no designated evidence indicating that either of the McGraths 

ever interacted with a Penske employee. While Debra unquestionably had a 

relationship with JAS, the designated evidence does not indicate that she had 

any relationship with Penske.

2. Foreseeability

[15] The Indiana Supreme Court has recognized that in some negligence cases, 

foreseeability is not just a question of proximate cause, but also a question of 

duty. See Goodwin, 62 N.E.3d at 389; Rogers v. Martin, 63 N.E.3d 316, 325 (Ind. 

2016).

But foreseeability in this context—as a component of duty—is 

evaluated differently than foreseeability in proximate cause 

determinations: while the latter foreseeability analysis requires a 

factfinder to evaluate the specific facts from the case, the former 

involves a lesser inquiry, requiring a court, as a threshold legal 

matter, to evaluate the broad type of plaintiff and harm involved, 

without regard to the facts of the actual occurrence. By focusing 

on the general class of persons of which the plaintiff was a 

member and whether the harm suffered was of a kind normally 

to be expected, courts must assess whether there is some 

probability or likelihood of harm that is serious enough to induce 

a reasonable person to take precautions to avoid it, not merely 

that harm is sufficiently likely[.] Because almost any outcome is 

possible and can be foreseen, this ensures that landowners do not 

become the insurers of their invitees’ safety[.] 
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Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d 837, 840 (Ind. 

2020) (brackets added; other brackets, quotations, and citations omitted). 

“[T]he mere fact that a particular outcome is ‘sufficiently likely’ is not enough 

to give rise to a duty.” Goodwin, 62 N.E.3d at 392. “Instead, for purposes of 

determining whether an act is foreseeable in the context of duty we assess 

whether there is some probability or likelihood of harm that is serious enough 

to induce a reasonable person to take precautions to avoid it.” Id.

[16] At common law all dogs, regardless of breed or size, are 

presumed to be harmless, domestic animals. Absent a statute to 

the contrary the common law presumption must prevail. To 

overcome the presumption that a domestic, as opposed to a wild, 

animal is harmless, one must point to a known vicious or 

dangerous propensity of the animal in question. A dangerous or 

vicious propensity has been defined in Indiana as a propensity or 

tendency of an animal to do any act which might endanger the 

safety of person or property in a given situation. It is the act of 

the animal and not in the state of mind of the animal from which 

the effects of a dangerous propensity must be determined. It is 

not, therefore, reasonable to attribute vicious propensities to a 

dog merely because he barks at strangers, because a person is 

afraid of the dog, or because a city ordinance requires a dog to be 

restrained at all times.

Royer v. Pryor, 427 N.E.2d 1112, 1117 (Ind. Ct. App. 1981) (internal citations 

and quotation omitted). Likewise, it is not reasonable to attribute vicious 

propensities to a dog merely because of a “Beware of Dog” sign. See generally 

Smedley v. Ellinwood, 21 A.D.3d 676, 677, 799 N.Y.S.2d 682, 683 (N.Y. App. 

Div. 2005) (“[T]he presence of a ‘Beware of Dog’ sign, standing alone, is 

insufficient to impute notice of a dog’s viciousness.”); Wright v. Morris, 239 
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S.E.2d 225, 226 (Ga. Ct. App. 1977) (providing that presence of a sign stating 

“Beware of Dog” on a fence surrounding appellee’s home is not, alone, 

sufficient to raise a jury question regarding liability as it “does not in and of 

itself establish or tend to establish knowledge of the propensities of the resident 

animal”).

[17] The designated evidence indicates that Dirindin put up the “Beware of Dog” 

sign in 2012, before her daughter had rescued Cam. Dirindin described Cam as 

a “home dog” that Dirindin occasionally took places but otherwise “stay[ed] at 

home.” Appellant’s App. Vol. II p. 54. Prior to November 4, 2017, Cam had 

been to JAS “on occasion ... some months zero, other months, you know, once 

or twice.” Appellant’s App. Vol. II p. 55. The designated evidence further 

indicated that no Penske representative had ever observed an unrestrained dog 

at JAS and Penske had “no knowledge of the existence, breed propensities, 

history, or methods of confinement of the dog that was at [JAS] on November 

4, 2017.” Appellant’s App. Vol. II p. 85. Nothing in the designated evidence 

suggests that Penske had any knowledge that Dirindin had a dog on JAS’s 

premises on November 4, 2017, let alone a dog with dangerous propensities. 

[18] Furthermore, to the extent that the trial court pointed to a prior police 

complaint regarding a dog bite on JAS’s premises,2the Indiana Supreme Court 

2

 While the record is unclear about the dog involved in this alleged prior complaint, it does not appear to 

have involved Cam as the designated evidence indicates that Cam had never demonstrated aggressive 

propensities or vicious tendencies prior to November 4, 2017.
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recently made it clear that this type of historical evidence is inappropriate to 

consider when evaluating foreseeability as a component of duty. See 

Cavanaugh’s Sports Bar, 140 N.E.3d at 844 (“[H]istorical evidence, while 

‘appropriate in evaluating foreseeability in the context of proximate cause,’

should play no role when we evaluate ‘foreseeability as a component of duty.’

Goodwin, 62 N.E.3d at 393.”). Given that the presence of the “Beware of Dog” 

sign was, without more, insufficient to impute notice to Penske of Cam’s 

allegedly aggressive propensities or viciousness, we conclude that Debra’s 

injury was not foreseeable to Penske as there was nothing in the record that 

would have alerted Penske that there was some probability or likelihood of 

harm that was serious enough to induce a reasonable person to take precautions 

to avoid it. See Goodwin, 62 N.E.3d at 392. Stated differently, this broad type 

of defendant, i.e., a rental equipment owner whose equipment is rented through 

independently owned and operated businesses, would have no reason to foresee 

that its conduct, i.e., providing equipment for the independently owned and 

operated business to rent to its customers, would result in the broad type of 

harm, i.e., a dog bite, to this broad type of plaintiff.

3. Public Policy

[19] “The final factor in the Goodwin test is the public policy consideration of who is, 

or should be, in the best position to prevent injury and how society should 

allocate the costs of such injury.” ONB, 107 N.E.3d at 494 (internal quotation 

omitted). In this case, the entities best suited to prevent Debra’s injury were 

Dirindin and JAS. As Penske had no control over the dog in question or 
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knowledge that it was on the JAS premises on November 4, 2017, this factor 

weighs against finding Penske had a duty to the McGraths. See id. (providing 

that this factor weighs against finding ONI had a duty to the accident parties 

because ONI had no control over the actual means by which the accident 

occurred and the entities best suited to prevent injury to a motorist were the 

individual who drove the truck that caused the accident and the owner of the 

truck).

[20] We conclude that all three of the Goodwin factors weigh in favor of the 

conclusion that, as a matter of law, Penske did not owe a duty to the McGraths. 

Again, “[a]bsent a duty there can be no negligence or liability based upon the 

breach.” Goodwin, 62 N.E.3d at 386. As such, we conclude the trial court erred 

when it denied Penske’s motion for summary judgment on the McGrath’s 

direct-negligence claim. 

II. Vicarious Liability

[21] Penske also contends that the trial court erred by denying its motion for 

summary judgment on the McGraths’ vicarious-liability claim. “Vicarious 

liability is indirect legal responsibility.” Sword v. NKC Hosps., Inc., 714 N.E.2d 

142, 147 (Ind. 1999) (internal quotation omitted). “It is a legal fiction by which 

a court can hold a party legally responsible for the negligence of another, not 

because the party did anything wrong but rather because of the party’s 

relationship to the wrongdoer.” Id. “Courts employ various legal doctrines to 

hold people vicariously liable, including respondeat superior, apparent or 
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ostensible agency, agency by estoppel, and the non-delegable duty doctrine.” 

Columbus Reg’l Hosp. v. Amburgey, 976 N.E.2d 709, 714 (Ind. Ct. App. 2012).

[22] “Agency is the fiduciary relationship that arises when one person (a ‘principal’) 

manifests assent to another person (an ‘agent’) that the agent shall act on the 

principal’s behalf and subject to the principal’s control, and the agent manifests 

assent or otherwise consents so to act.” Yost v. Wabash Coll., 3 N.E.3d 509, 

518–19 (Ind. 2014).

A principal is liable for the acts of his agent that were committed 

within the scope of the agent’s actual or apparent authority. 

Apparent authority refers to a third party’s reasonable belief that 

the principal has authorized the acts of its agent; it arises from 

the principal’s manifestations to a third party and not from the 

representations or acts of the agent. The manifestations can 

originate from direct or indirect communication, or from 

advertisements to the community.

Helms v. Rudicel, 986 N.E.2d 302, 309 (Ind. Ct. App. 2013). “Actual authority 

is created by written or spoken words or other conduct of the principal which, 

reasonably interpreted, causes the agent to believe that the principal desires him 

so to act on the principal’s account.” Fid. Nat. Title Ins. Co. v. Mussman, 930 

N.E.2d 1160, 1165 (Ind. Ct. App. 2010). “The focus of actual authority is the 

belief of the agent.” Id. “Actual authority may be express or implied and may 

be created by acquiescence.” Id.

[23] It is undisputed that JAS and Penske shared an agent-principal relationship on 

November 4, 2017. In arguing that the trial court erred by denying its motion 
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for summary judgment, Penske asserts that it was entitled to judgment as a 

matter of law because no issue of material fact remained as to whether 

Dirindin’s negligence was committed within the scope of this relationship. We 

disagree.

[24] The Agency Agreement created “a limited, non-exclusive agency relationship 

between” Penske and JAS. Appellant’s App. Vol. II p. 62. While the terms of 

the Agency Agreement did not expressly permit JAS to possess a dog on the 

premises for or on behalf of Penske, it did require JAS to protect all Penskeowned and supplied property and indicated that JAS would not be liable for 

any damaged or stolen equipment if JAS “took all reasonable measures to 

secure and protect” the Penske-owned and supplied property. Appellant’s App. 

Vol. II p. 63. The designated evidence indicates that Dirindin posted the 

“Beware of Dog” sign “in an effort, in part, to protect Penske equipment” and 

“would occasionally bring a dog (including Cam) to her office for safety and 

protection.” Appellant’s App. Vol. II p. 118. Thus, one could reasonably argue 

that Dirindin was acting within the scope of her authority as Penske’s agent by 

having a dog on the premises as a means of protecting Penske’s equipment and 

property. 

[25] Furthermore, the designated evidence indicates that Penske listed JAS as an 

authorized rental location and indicated that JAS’s normal hours of operation 

included the hours of 8:00 a.m. to 3:00 p.m. on Saturdays. It also indicates that 

McGrath successfully arranged to rent a Penske truck from JAS and arrived at 

JAS to pick up the truck within the publicized hours of operation. This 
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evidence creates an issue of material fact as to whether Dirindin’s negligence 

fell within either JAS’s actual or apparent authority to act as Penske’s agent. 

As such, we conclude that the trial court properly denied Penske’s motion for 

summary judgment relating to the McGraths’ vicarious-liability claim. 

[26] The judgment of the trial court is affirmed in part and reversed in part and the 

matter remanded to the trial court for further proceedings.

Najam, J., and Mathias, J., concur.