Ali v. Lucas Cnty. Dog Warden
2017 Ohio 2809
| Ohio Ct. App. | 2017Background
- In January 2016 George Ali invited a family into his home to show Rottweilers; a five-year-old child (A.S.) was bitten by Ali’s 5‑year‑old Rottweiler, Boss, suffering serious neck injuries requiring surgery and ongoing care.
- The Lucas County Dog Warden designated Boss a “vicious dog” under R.C. 955.11(A)(6)(a), triggering statutory owner obligations; Ali appealed the designation to Toledo Municipal Court.
- At the municipal hearing the warden bore the burden to prove by clear and convincing evidence that Boss caused serious injury "without provocation." No witness observed the moments immediately before the bite.
- Parents testified they did not see A.S. provoke the dog but acknowledged it was possible she stepped on or poked Boss; Ali testified Boss had no prior aggression and he did not believe Boss posed a danger.
- The magistrate recommended rescinding the designation; the trial court adopted that recommendation. The warden appealed to this court, which affirmed the rescission.
Issues
| Issue | Ali's Argument | Warden's Argument | Held |
|---|---|---|---|
| Whether a five‑year‑old child can, as a matter of law, provoke a dog | Ali argued no categorical rule should bar considering child conduct; disputed that five is incapable | Warden urged extension of Ramsey to hold a five‑year‑old cannot tease/torment/abuse a dog as matter of law | Court declined to extend Ramsey; refused a bright‑line rule that five‑year‑olds cannot provoke a dog |
| Whether A.S.’s conduct amounted to provocation under R.C. 955.11(A)(7) | Ali argued evidence was insufficient to prove lack of provocation by clear and convincing evidence | Warden argued A.S. did not persistently tease/torment and conduct was merely playful, so designation was proper | Court held warden failed to prove by clear and convincing evidence that Boss was not provoked; factual record ambiguous |
| Whether Ali’s decision to bring family in and position dog evidenced owner awareness of risk | Ali argued he reasonably believed Boss was non‑aggressive and positioned dog for safety, not because of known danger | Warden argued Ali’s placement of dog showed awareness of risk and supports designation | Court found no clear and convincing evidence that Ali appreciated a risk that Boss would attack; positioning did not prove awareness |
| Standard and burden on appeal (manifest weight; burden of proof) | Ali relied on trial court’s finding and credibility assessments | Warden contended designation should be upheld on manifest weight; he had designated Boss originally | Court reiterated warden bears clear‑and‑convincing burden; on manifest‑weight review trial court did not lose its way and judgment stands |
Key Cases Cited
- In re Estate of Haynes, 25 Ohio St.3d 101 (definition of clear and convincing evidence)
- State v. Thompkins, 78 Ohio St.3d 380 (manifest‑weight standard of review)
- Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77 (trial judge best positioned to assess witness credibility)
- Ramsey v. King, 14 Ohio App.3d 138 (three‑year‑old held incapable, as matter of law, of teasing/tormenting/abusing a dog)
- Hunter v. Cleveland, 46 Ohio St.2d 91 (discussing effect of youth on attributing negligence)
- Holbrock v. Hamilton Distributing, Inc., 11 Ohio St.2d 185 (rule that a child under seven is, as matter of law, incapable of contributory negligence)