Brown v. Terrell
114 N.E.3d 783
Ohio Ct. App.2018Background
- Seven-year-old T.L. was attacked on the driveway by a neighbor's pit bull that broke free from where it was chained; he suffered a fractured ankle requiring surgery.
- Dog owner/tenant: Territa Terrell, who lived at 758 Kipling Street and primarily controlled the property; she sometimes paid rent and paid utilities.
- Property co-owner/landlord: Yvonne Terrell (co-owner with her brother) lived elsewhere for decades, paid homeowners insurance, allowed Territa to occupy the house informally, and visited rarely (about three times in three years).
- Plaintiff Thomas Brown sued Territa and Yvonne under common law negligence and R.C. 955.28 strict liability, alleging Yvonne was a harborer of the dog.
- Yvonne moved for summary judgment asserting she neither owned, kept, nor harbored the dog; the trial court granted summary judgment for Yvonne (and insurer Allstate on separate grounds). Plaintiff appealed only the ruling for Yvonne.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Yvonne was a "harborer" of the dog under common law/R.C. 955.28 | Brown: Yvonne retained possession/control of premises and acquiesced to the dog’s presence, creating a triable issue | Yvonne: She did not possess or control the property (lived elsewhere, no keys, rare visits); routine landlord acts do not create harborer liability | Court: No genuine issue — Yvonne lacked possession/control of premises or common areas where attack occurred; not a harborer |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard for de novo review of summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (summary judgment framework)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (view facts most favorably to nonmoving party)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party's initial burden in Civ.R. 56; nonmoving party's reciprocal burden)
- Beckett v. Warren, 124 Ohio St.3d 256 (elements for common-law and statutory dog-bite claims)
- Khamis v. Everson, 88 Ohio App.3d 220 (definition of "harborer")
- Cooper v. Roose, 151 Ohio St. 316 (control implies power to admit/exclude as basis for tort liability)