2020 Ohio 1384
Ohio Ct. App.2020Background
- On November 12, 2014 an 8‑year‑old (H.W.) was attacked by a pit bull in the fenced backyard of a single‑family rental in Cleveland Heights, suffering serious injuries.
- Plaintiff sued the property owner/lessor Katie H. Davis, the dog owner/lessee Marvin Young Jr., lessee Carletha Woody, and lease guarantor Annanette West under R.C. 955.28 (dog‑bite strict liability), common‑law negligence, and a local vicious‑dog ordinance.
- Davis lived out of state and had leased the house to Young and Woody; West signed a guarantor lease but did not live at the property, did not have a key, and visited infrequently. The dog lived in the fenced backyard and was usually chained.
- The trial court granted summary judgment for Davis (finding she lacked possession/control required to be a "harborer") and granted partial summary judgment against Young; summary judgment against West was denied.
- At trial the jury found Young and Woody liable and awarded damages; the jury found West not to be a harborer. The trial court denied H.W.’s motions for JNOV and new trial as to West.
- H.W. appealed, challenging (1) Davis’s summary judgment, (2) the denial of a directed verdict against West under R.C. 955.28, and (3) denial of JNOV/new trial as to West.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Was Davis properly granted summary judgment? | Davis, as owner/lessor, could be liable in common‑law negligence for failing to ensure the yard/fence containment was safe. | Davis lacked possession or control of the premises (landlord out of possession) and thus was not a "harborer"; routine landlord acts do not create control. | Affirmed: summary judgment for Davis upheld; absence of possession/control defeats harborer status and no negligence per se under local ordinance. |
| 2) Was West entitled to a directed verdict under R.C. 955.28? | Signing the lease transferred possession/control as a matter of law, making West a harborer and strictly liable. | West only guaranteed the lease; she did not live there, lacked keys, did not exercise control or possession, and therefore was not a harborer. | Denied: trial court correctly found factual disputes on possession/control; jury verdict in favor of West stands. |
| 3) Was the jury verdict for West legally insufficient or against the weight of the evidence (JNOV/new trial)? | Evidence did not rebut legal presumption that lease guarantor is a harborer; JNOV or new trial required. | There was sufficient evidence West did not possess or control the property; verdict is supported by record and not against manifest weight. | Denied: court did not err; JNOV/new trial properly denied and judgment affirmed. |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 671 N.E.2d 241 (Ohio 1996) (summary judgment standard for de novo review)
- Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (Ohio 1978) (elements for granting summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (Ohio 1996) (burden allocation in summary judgment practice)
- Warner v. Wolfe, 176 Ohio St. 389, 199 N.E.2d 860 (Ohio 1964) (plaintiff may pursue statutory and common‑law claims)
- Burgess v. Tackas, 125 Ohio App.3d 294, 708 N.E.2d 285 (Ohio App. 1998) (harborer analysis re: landlord/tenant possession and control)
- Flint v. Holbrook, 80 Ohio App.3d 21, 608 N.E.2d 809 (Ohio App. 1992) (definition of "harborer" — possession and control of premises where dog lives)
- Cooper v. Roose, 151 Ohio St. 316, 85 N.E.2d 545 (Ohio 1949) (control implies right to admit or exclude others)
- Posin v. A. B. C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 344 N.E.2d 334 (Ohio 1976) (standard for directed verdict/JNOV)
- Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 884 N.E.2d 12 (Ohio 2008) (questions of law reviewed de novo)