MEMORANDUM
TO: XXXX
FROM: XXXX
DATE XXXX
SUBJECT: XXXX potential case against XXXX
Analysis of whether Claudia is liable for the injury sustained by XXXX XXXX daughter, XXXX after XXXX boyfriend’s dog bit her.
Question Presented
- Under Ohio law, can a property owner be found liable where a victim suffered a dog bite from a dog in the property owner’s property and where the dog owner made frequent visits to the property?
- Under Ohio law, can a property owner rely on the defense of teasing when the dog bite victim, under excitement, ran towards the dog, pushed the dog owner aside while intending to play with the dog?
Short Answer
- Probably no. In Ohio, property owners are only liable for dog bites if they are harborers. A property owner is a harborer if the property owner intends to keep the dog in the property and take care of him. Root v. Thousand Adventures of Ohio, 1997 Ohio App. LEXIS 1278 (Ohio Ct. App., Lorain County April 2, 1997). Claudia had no intention of keeping the dog on her property. Also, she did not feed him or take care of him. Therefore, Claudia is not a harborer.
- Probably no. In Ohio, property owners can rely on the defense of teasing where the dog bite victim did any act that troubled, annoyed, pestered, or persistently worried the dog. Quellos v. Quellos, 96 Ohio App.3d 31, 40 (8th Dist.1994). Zoey only had a natural childish reaction of excitement and affection for the dog. Accordingly, her actions did not tease the dog.
Facts & Procedure
Abbey Bartlet’s daughter, twelve-year-old Zoey, was injured from a dog bite. Claudia Cregg’s boyfriend owns the dog. Claudia is quite close to Abbey and Zoey. She takes yoga and Pilates with XXXX. XXXX also takes XXXX to school most mornings and babysits her when Abbey is busy. XXXX, XXXX boyfriend, lives in XXXX with his brother’s family but frequently visits Claudia. When he visits, he stays at Claudia’s house for a week or more. XXXX and Danny have been together for five years and plan to get married next year. Danny also is very fond of Zoey. XXXX loves his dog, XXXX, wherever he goes, his dog with him. Although XXXX is a sweet, loving dog that has never exhibited any violent tendencies, Claudia is never alone with Toby. She does not feed him, walk him, or otherwise care for him. Toby is Danny’s dog. XXX always looked forward to Danny visiting because she got to see XXXX.
Last week, while Abbey and XXX were visiting XXXX was excited to see Toby. She ran to him and pushed Danny out of the way to Toby. She had spent time with him on several occasions and ever petted him. Toby, instead of playing with her like he usually does, he bit her on her right hand. She started grieving almost immediately. At the hospital, doctors directly operated on Zoey because the bite had caused nerve damage. Zoey will require several more surgeries to put her hand back to normal. She is also now afraid of dogs, including her dog. We have settled with Danny. However, Danny’s insurance policy will not cover the extent of the damages. Abbey wants to know if Claudia can be held liable for Toby’s biting Zoey.
Discussion
- Harborers:
- Conclusion:
The Court is unlikely to find that Claudia is a harborer. R.C. 955.28 (B) states that the owner, keeper, or harborer of a dog is liable in damages for any injury. However, the issue to be decided is Whether Claudia harbored the dog.
- Rule and Explanation :
R.C. 955.28 (B) states that the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog. A harborer is one who is in possession and control of the premises where the dog lives and silently acquiesces in the dog being kept there by the owner. Acquiescence requires some intent. Liability as a harborer is established if the owner of the premises knowingly permitted the dog to live and make its home on his land. Brown v. FMW RRI NC LLC, 10th Dist. Franklin No. 14AP-953, 2015-Ohio-4192, ¶ 1.
The property owner is not liable for a dog bite on his property when the dog’s stay is only temporary. Root v. Thousand Adventures of Ohio, 9th Dist. Lorain C.A. NO. 96CA006477, 1997 Ohio App. LEXIS 1278 (Apr. 2, 1997), ¶ 7. In Root, the plaintiff’s son was bitten by a dog owned by Mr. Bresland, who was temporarily staying with his dog at the campgrounds. Id., ¶ 2. The plaintiff sued the campgrounds, and the trial court granted the defendant a summary judgment. Id., ¶ 3. Because Mr. Bresland was at the campgrounds only temporarily, the Court affirmed the grant of judgment as a matter of law to the campground owner. The Court stated in this regard that, “With respect to the responsibility to control a dog, a person is not a harborer even if he acquiesces to a dog’s presence on the property over which he has possession and control if the dog does not regularly live at that property.” Id., ¶ 7. As such, a property owner is not liable as a harbor if the dog’s owner does not reside permanently in the property. Id., ¶ 8.
When a dog owner’s stay at a property suggests that it could be permanent, it is an issue of fact for a jury. Brown v. FMW RRI NC LLC, 2015-Ohio-4192 (Ohio Ct. App., Franklin County October 8, 2015), ¶ 12. In Brown, Rhone and his dog were living periodically at RRI’s property. Id., ¶ 2. The Court of Appeals held that “absent any direct authority demarcating between temporary and permanent living, we believe that the issue of whether Rhone and his dog were living at the hotel is one that is suited for a jury.” Id., ¶ 21. The Court of Appeals reviewed the record and found that Rhone actually stayed at RRI for 54 days during the 2-months. They found that there is no magic number, which converts a temporary stay into a more permanent one. So, a reasonable jury could find that Rhone was living at RRI with the requisite degree of permanency at the time of the incident. Rhone was homeless.
- Application:
The rule in R.C. 955.28 (B) does not apply to Claudia because she was not the harborer of a dog. However, a person is not a harborer even if he acquiesces to a dog’s presence on the property over which he has possession and control if the dog does not regularly live at that property. Root v. Thousand Adventures of Ohio, 9th Dist. Lorain C.A. NO. 96CA006477, 1997 Ohio App. LEXIS 1278, at (Apr. 2, 1997) ¶ 6, quoting Rucker v. Taylor (July 12, 1993), 1993 Ohio App. LEXIS 3497. The dog does not regularly live at Claudia’s property; therefore, Claudia is not a harborer.
Claudia and Thousand Adventures both have similar facts in terms of having a dog’s owner guest who was not regularly living in the property. In Root v. Thousand Adventures of Ohio, Mr. Bresland, the dog owner, was temporarily staying with his dog at the campgrounds, and the Court held that the campgrounds were not liable as the harbor. In addition, Thousand Adventures had a policy for staying in portable trailers or mobile homes for a maximum of 21 days. The Court has interpreted the stay requirement to mean something more than a temporary residence. Here, Danny lives in New York, and last time he visited, he stayed for a week or more. He did not live with her, and he resided in her property for less than 21 days.
It may be argued, relying on the Brown’s case, that Claudia’s boyfriend and the dog stayed permanently on Claudia’s property. In Brown, Mr. Rhone, the dog’s owner, had lived in the hotel for 46 days from 11 January 2013 to 10 March 2013. The RRI did not have a policy of limiting the duration of guests’ stays, nor evidence that Rhone did not intend to stay or had another place to stay. The Court of Appeal ruled that in the absence of an authority to differentiate between temporary and permanent living, the jury decides on it. They found that a reasonable jury could find that Rhone was living at RRI with the requisite degree of permanency at the time of the incident as he was homeless and stayed in the hotel for 46 days within two months. Here, Claudia’s boyfriend wasn’t living with her. He was only visiting her every once in a while. He has another residence in another state, and the last time he visited her, he stayed for about a week or more. Even if he returns, he will remain temporarily residing because he has his own house. The Court will likely find that Danny was not living at Claudia’s property with the requisite degree of permanency at the time of the dog bite for Claudia to be considered a harborer.
- Conclusion
The Court is unlikely to find that Claudia is a harborer. She was not the harbor to the dog because she did not intend to have the dog live on her property. She also took no responsibility for feeding the dog and taking care of it. Lastly, the dog’s owner did not regularly live on Claudia’s property. He only visited Claudia on limited occasions and for a specified duration of time.
- Teasing/Tormenting
- Conclusion
The Court is unlikely to find that Zoey is teasing or tormenting the dog at the time of injury. R.C. 955.28 (B) Claudia could not rely on teasing defense because there is no evidence that Zoey teased Toby.
- Rule and Explanation
R.C. 955.28 (B) states that the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, keeper, or harborer, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.
Judgment may be entered for the victim if there is no evidence that the victim teased the dog. Jones v. Capco, 8th Dist. Cuyahoga Nos. 81748, 81892, 2003-Ohio-5807, ¶ 1. In Jones, the appellee, a mailman, sustained a bite injury when delivered mails to the appellant’s home. The appellant did not notice the dog around him as he delivered the mails. It was not until he felt some movement on his legs that he moved his arm towards his leg causing the dog to bite him. He also sustained an ankle injury consequential to the incident. Id., ¶ 2. The trial court granted the appellee directed verdict on the basis that there was no evidence that the appellee teased the dog. The appellate court affirmed the directed verdict and maintained that the appellee’s movement of the arm did not amount to teasing. He was just reacting normally after the dog touched his leg. Id., ¶ 12.
Teasing happens when the victim troubles, annoys, pesters, or persistently worries the dog. Quellos v. Quellos, 96 Ohio App.3d 31, 40 (8th Dist.1994), ¶ 40. In Quellos, the appellants, the injured child, and her parents sought review of a judgment after a jury verdict rendered judgment for appellee dog owners. Id. In this case, the appellant sustained injuries after the appellee’s dog bit her. The incident took place in the appellee’s kitchen after the appellee instructed the appellant to open the kitchen door and let the dog in. At the trial court, the appellee contended that the appellant teased the dog by preventing him from accessing his food. The trial court ruled in favor of the appellee and held that the appellant’s conduct amounted to teasing. At the appeal, the Court considered the actions of the appellant. The Court observed that the appellant was rubbing the dog affectionately while barring him from his food on the kitchen floor. Accordingly, the Court held that the said actions did not amount to teasing. Id., ¶ 42. In the words of the Court, “Teasing means to annoy or to trouble or to worry persistently, to be troublesome or to pester.” Id., ¶ 40.
- Application
Under R.C. 955.28 (B), a property owner is liable for a dog bite injury, death or loss, unless the said injury, death, or loss were caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, keeper, or harborer, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property. However, Claudia could not rely on R.C. 955.28 because the conduct in question did not amount to teasing.
Clauda may have a hard time producing evidence that Zoey teased the dog. Clauda’s case resembles Jones. In Jones, the jury awarded the victim $28,500 for his injury because there was no evidence that he teased, tormented, or abused the dogs. Accordingly, With Zoey, there is no evidence also to show that she was teasing or tormenting Toby. She was playing with Toby as she usually does.
In Quellos v. Quellos, the appellate Court held that reasonable minds could reach different conclusions about whether the appellant was teasing the dog at the time of her injury and the child’s behavior was like the typical child’s habits of behavior toward dogs. This case is similar to the current case because the victims intended to play or show affection to the dogs in both. The Court will likely apply the reasoning in Quellos to hold that Zoey’s actions did not amount to teasing.
- Conclusion
The Court is unlikely to find that XXXX is teasing or tormenting the dog at the time of injury. Under R.C. 955.28 (B), what XXXX did could not be classified as teasing or tormenting. Her conduct does not fit the legal description of teasing in XXXX. Also, from the facts, there is no evidence that XXXX teased the dog. Besides, it is a behavior that is normal for any child.
Conclusion
The Court will likely find that XXXX is not a harbor because she neither acquiesced nor intended to have her boyfriend’s dog in her property. Besides, she took no care of the dog to the extent of not feeding him or keeping his company. The Court will also likely find that XXXXX conduct was not teasing because the action could not trouble, annoy, pester, or persistently worry the dog. Claudia will likely have no evidence that XXXX teased the dog. Accordingly, the Court will likely dismiss the action against XXX
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