MEMORANDUM
TO: XXXX.
FROM:
DATE:
SUBJECT: XXXX potential dog bite case against XXXX
Whether the Court can find XXXX responsible for a dog bite on XXXX daughter which happened on XXXXX property.
Question Presented
- Can a property owner be held liable for a victim’s injury as a harborer, even though she was not the owner of the dog?
- Can a property owner use teasing as a defense in a dog bite case where the victim ran towards the dog and touched him, intending to play with him?
Short Answer
- Likely no. For a property owner to be responsible for a dog bite, the property owner must be a harborer. A person is considered a harborer if the person consents to the dog living in the property. The individual must also be in actual control of the property. Brown v. FMW RRI NC L.L.C., 10th Dist. Franklin No. 14AP-953, 2015-Ohio-4192, ¶ 1. Claudia had no intention of having the dog in her compound. The dog always followed its owner, and Claudia never spent time with it.
- Likely no. To rely on the defense of teasing, the person must prove that the victim teased the dog into the errant behavior. Accordingly, the victim must have persistently worried, annoyed, troubled, or pestered the dog. Quellos v. Quellos, 96 Ohio App.3d 31, 40 (8th Dist.1994). Here, the victim only ran towards the dog and touched him, intending to play with him.
Facts & Procedure
XXXX was bitten by XXXX dog. XXXX is the daughter of XXXX and XXXX are neighbors and friends. They take Yoga and pilates together. They are so close that XXXX babysits XXX when XXXX is not around. The dog that bit XXXX belongs to XXX, who is XXXX boyfriend. He lives away in XXX but visits XXXX frequently. When he visits Claudia, he spends about a week or more at XXXX home. XXXX is also fond of XXXX.
Danny is so close to his dog- XXX. He accompanies Danny everywhere. However, XXXX is afraid of dogs, and for that reason, she is not close to XXXX. For that reason, Claudia has never been alone with Toby. She does not feed him or take care of him. XXXX, on the other hand, is fond of dogs. She talks about her liking for dogs a lot. Abbey finally bought her a puppy.
On the day XXXX was bitten, XXXX and XXX saw XXXX and XXXX on the front porch. XXX was always excited when she saw XXX because she would get to meet XXXX Filled with excitement, XXX ran towards XXX, squealing loudly while pushing Danny out of the way. She held Toby intending to pull him closer to her so that she may pet him. Unfortunately, XXX bit XXX on the right hand. XXXX bled a lot and was rushed to the hospital. At the hospital, the doctors discovered that the dog bite had damaged XXX nerves. She would require several surgeries in the future. After the dog bite, XXX is now afraid of dogs. XXX wants to know whether XXX can be held liable for XXXX injuries.
Discussion
- Harborers:
The Court will likely find that Claudia is not a harborer, as defined by the statute. Under Ohio law, the owner, keeper, or harborer of a dog is liable for any injury, death, or loss to a person or property that is caused by the dog. R.C. 955.28 (B). Therefore, the issue here is whether Claudia harbored the dog.
A harborer is not defined in the statute, but the courts have defined it to mean a person who has possession and control of the premises where the dog lives and silently acquiesces to the dog’s presence. Brown v. FMW RRI NC, L.L.C., 2015-Ohio-4192. To determine if a person is a harborer, courts look at whether they have possession and control of the dog. Id . In Brown, the appellant was bitten by Rhone’s dog. Rhone was temporarily staying at the appellee’s property. The incident happened when the appellant was walking her dog one evening. Suddenly, Rhone’s dog broke through the appellee’s compound and attacked the appellant’s dog. The appellant successfully attempted to break the attack by hitting Rhone’s dog. Unfortunately, Rhone’s dog bit the appellant and injured her. The injuries left the appellant with several injuries, including a broken finger which needed surgery. The appellant sued the appellee for the injuries. At the trial court, the appellee moved the Court for a summary judgment on the grounds that Rhone stayed temporarily at the appellee’s premises and that the temporary stay was not sufficient to make the appellee’s compound a home for Rhone’s dog. The appellate Court ruled in favor of the appellant and held that Rhone stayed at the appellee’s compound “with the requisite degree of permanency at the time of the incident”. Id., ¶ 21. Rhone had stayed at the appellee’s facility for about two months. According to the Court, when a dog owner’s stay at a property suggests that it could be permanent, it is an issue of fact for a jury. The Court further stated that “a reasonable jury could find that Rhone was living at R.R.I. with the requisite degree of permanency at the time of the incident”. Id., ¶ 17.
Even if the person acquiesces to the dog’s presence on the property over which he has possession and control, if the dog does not regularly live on the property, the person is not a harborer. Root v. Thousand Adventures of Ohio, Inc., 1997 WL 164313 (Ohio Ct. App. Apr. 2, 1997). That is the dog that temporarily stays on the property with that person’s permission. Id.. In Root, Mr. Bresland was temporarily staying with his dog at the campgrounds. One day, the dog bit the Plaintiff’s son. Consequently, Plaintiff sued the campgrounds. The trial court ruled in favor of the defendant and granted them summary judgment on the grounds that Mr. Bresland’s stay on the campgrounds was temporary. The appellate Court affirmed the lower Court’s decision and held that Mr. Bresland only had a temporary stay at the campgrounds. In the words of the Court, “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. It follows; a person cannot be found liable as a harbor where the dog owner resides temporarily on the person’s premises.
Here, the Court will likely find that Claudia does not meet the definition of a harborer. Claudia’s case is similar to that of Roots. In both, there are dog owners who do not permanently stay on the property owner’s property. The Plaintiff in Roots only visited the campgrounds regularly per the campground’s policy. In Claudia’s case, Danny does not permanently stay on Claudia’s property. He only visits regularly. Notably, he sends around a week for each visit. It follows; if the courts did not recognize a permanent stay in Roots, then the Court here will find that Danny did not stay permanently on Claudia’s property.
Based on Brown, it is likely to be argued that Danny’s stayed permanently on Claudia’s property. However, the facts in Brown are materially different from Claudia’s case. In Brown, Rhone stayed in the appellee’s property for about two months continuously. On the other hand, Danny in Claudia’s case only visited regularly and stayed around a week for each visit. Accordingly, the Court may likely find that Danny’s stay on Claudia’s property lacked the requisite degree of permanency.
Based on the fact pattern, it can be argued that Claudia is, in fact, a harborer. She has possession and control of the premises where Toby lives. However, this argument may be struck down because Toby was only staying there temporarily. Courts have found that a person is not a harborer because the dog was temporarily staying on the premises and, therefore, not living there. Toby only stays at Claudia’s house for a week or more when Danny visits. This is a temporary stay; therefore, Claudia is not a harborer.
- Teasing/Tormenting
The Court may likely find that Zoey’s behavior does not amount to a statutory defense that Claudia can use to escape liability. The owner could escape liability if the injury were caused by the victim’s teasing, tormenting, or abusing the dog on the owner’s property. R.C. 955.28 (B).
Teasing means to annoy, trouble, or pester; tormenting is behavior that elicits a greater annoyance and implies pain or torture while abusing is mistreatment that causes physical injury to the animal. Ramsey v. King, 14 Ohio App. 3d 138, 470 N.E.2d 241 (1984). In Ramsey, the appellant was bitten by the appellee’s dog. The incident happened when the appellant and his family visited his grandmother, whose home was adjacent to the appellee’s home. The appellee contended that the appellant teased the dog by following the dog around, trying to grab onto his tail. The trial court entered judgment in favor of the appellee. The appellate Court reversed the lower Court’s judgment and ruled in favor of the appellant. According to the Court, the appellee failed to provide sufficient evidence that the appellant teased the dog. In the words of the Court, “there is no direct testimony by any witness that could lead a jury to conclude that the child was teasing, tormenting, or abusing the dog at the time the injury occurred”. Id.
To determine whether the victim who was bit by the dog was teasing, abusing, or tormenting the dog, the courts look at the victim’s actions. For example, the courts found that a victim’s conduct was teasing when the victim prevented the dog from reaching his daily supply of food. Quellos v. Quellos, 96 Ohio App.3d 31, 40 (8th Dist.1994). In Quellos, the appellant sustained injuries after the appellee’s dog bit her. The appellant had accompanied the appellee to her house. While at the kitchen, the appellant opened the door to let the dog in. However, the appellant stood in front of the dog and prevented it from accessing its food, which was on the kitchen floor. At the trial court, the appellee presented evidence that the appellant teased the dog by obstructing the dog’s way to his food. Accordingly, the Court entered summary judgment in favor of the appellee. At the appeal, the appellate Court affirmed the trial court’s judgment. According to the appellate Court, the appellant’s conduct amounted to teasing. The Court defined teasing to mean “to annoy or to trouble or to worry persistently, to be troublesome or to pester”. Id.
The Court will likely find that Zoey did not tease the dog. This case is similar to Ramsey because there is no evidence that Zoey’s actions amounted to teasing. In Ramsey, the appellate Court entered judgment in favor of the appellant because the appellee failed to convince the Court that the appellant’s conduct teased the dog. In Claudia’s case, Zoey rushed to the dog in the excitement of a child with the intention of playing with him. Accordingly, the Court may likely find that Zoey’s conduct did not tease the dog.
Based on Quellos, it may be argued that Zoey’s actions teased the dog. However, Claudia’s case is different from Quellos. In Quellos, the victim barred the dog from accessing his food. This action is reasonably expected to raise the dog’s anger. Zoey, on the other hand, did no action that would annoy, trouble, worry, or pester the dog. She was only reacting to her excitement of meeting the dog, which she liked. Accordingly, the Court may likely apply the reasonable standard in XXXX and find that Zoey’s conduct did not tease the dog.
There is no evidence to show that Zoey provoked Toby by teasing, abusing, or tormenting him. She was only reacting as every normal dog lover would do. Therefore, Zoey did not tease the dog.
Conclusion
It is likely the Court will find that Claudia is not a harborer. Claudia had no possession or control of the dog. Besides, the dog did not live permanently on her property. The Court will also likely find that Claudia cannot successfully rely on the defense of teasing because Zoey did not tease the dog. Teasing means to annoy, trouble, or pester. Zoey only reacted normally as every child dog lover would. Accordingly, the Court will likely dismiss the action against Claudia.
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