E.F. v. Seymour
120 N.E.3d 459
Ohio Ct. App.2018Background
- Minor plaintiff (E.F.) was bitten by a dog on July 19, 2015; suit alleged common-law negligence and statutory strict liability against dog owner/keeper and also against Susan Griffith (appellee) as an alleged "harborer."
- Seymour (daughter) lived at the single-family house where the dog lived; she paid Susan $675/month and both names appear on the deed, but Susan did not reside there and testified she would call/knock before entering.
- Susan moved for summary judgment asserting she was not the dog’s owner, keeper, or harborer because she lacked possession and control of the premises (functionally a landlord).
- Plaintiff argued genuine issues of fact existed because of the mother–daughter relationship, lack of a written lease, payments to Susan (claimed as co-ownership or not a true lease), Susan’s maintenance activity, and alleged prior incidents suggesting Susan knew the dog was vicious.
- Trial court granted summary judgment for Susan (finding no possession/control), entered judgment against Seymour, and plaintiff appealed only Susan’s grant of summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Susan was a "harborer" of the dog (possession and control of premises where dog lived) | Susan is effectively in possession/control (co-owner/landlord with ongoing involvement); mother–daughter relationship and lack of written lease create factual disputes | Seymour was the occupant/tenant in possession and control; Susan did not live there, treated it as rented property, and lacked authority to admit/exclude without notice | Court: No genuine issue of material fact; Susan was not a harborer because she lacked possession/control; summary judgment affirmed |
| Whether plaintiff overcame presumption that tenant/occupant controls a single-family residence | Payments and facts about relationship create a question for the jury | Oral lease/landlord–tenant relationship (even if informal) confers possession/control to Seymour absent evidence Susan controlled common areas | Court: Presumption of tenant possession not rebutted; plaintiff’s facts insufficient to create dispute on possession/control |
| Whether Susan knew of dog's viciousness (relevant to negligence claim) | Prior incidents and reports suggest Susan had or should have had knowledge | Susan denied awareness of prior attacks; even if arguable, harborer status is threshold and lacking here | Court: Moot—did not reach knowledge because harborer status not met |
| Whether plaintiff forfeited arguments on appeal (co-ownership theory) | Co-ownership/possession arguments are properly before the court | Plaintiff raised different theory below (statute of frauds); new co-ownership theory not raised at trial | Court: Plaintiff waived the new co-ownership argument by not raising it below |
Key Cases Cited
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64 (Ohio 1978) (standard for summary judgment under Civ.R. 56)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (party moving for summary judgment must initially identify absence of genuine issue; nonmoving party must then produce specific facts)
- Brown v. Terrell, 114 N.E.3d 783 (Ohio App.) (landlord who does not possess or control leased single-family premises is not a harborer where plaintiff fails to show control of common/shared areas)
- Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103 (Ohio App.) (appellate de novo review of summary judgment applies the same standard as trial court)