Krzywicki v. Galletti
27 N.E.3d 991
Ohio Ct. App.2015Background
- On April 24, 2010 Tiffany Krzywicki was attacked by a Rottweiler named Riggs at the home/business premises of Paul Galletti, causing serious injuries.
- Krzywicki sued Galletti and later added Diversified Building Maintenance, LLC (DBM) under R.C. 955.28(B) strict‑liability theory; Galletti was dismissed by agreement before trial and DBM proceeded as sole defendant.
- At trial evidence showed Krzywicki had an on‑and‑off romantic relationship with Galletti, spent substantial time at his home, participated in acquiring Riggs, and (per a witness) performed care tasks for the household dog in the month before the attack.
- The jury was instructed that a person who is an owner, keeper, or harborer of a dog may not recover under R.C. 955.28(B); interrogatories asked whether DBM was a harborer and whether Krzywicki was a keeper/harborer.
- The jury found DBM was a harborer but returned a verdict for DBM because it concluded Krzywicki was a keeper (i.e., had physical care/charge of the dog).
- Krzywicki moved for a new trial and appealed, raising seven assignments of error (including improper submission of keeper/harborer issue, defective verdict, insufficiency/manifest weight, and denial of mistrial); the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury could be asked to decide if plaintiff was an owner/keeper/harborer when that was not pleaded as an affirmative defense | Krzywicki: DBM waived that defense by not pleading it; submitting it at close of evidence was reversible error | DBM: Plaintiff’s status as owner/keeper/harborer is not an affirmative defense but a threshold question that precludes recovery under R.C. 955.28(B) | Court: No error — status is not an affirmative defense under Civ.R.8(C) but determines availability of R.C. 955.28(B) relief, so submission was proper |
| Whether the jury’s general verdict conflicted with interrogatories and was defective | Krzywicki: The general verdict is inconsistent with interrogatory answers and thus defective | DBM: Interrogatories and verdict were consistent because jury found DBM a harborer but plaintiff was a keeper, barring recovery | Court: No defect — verdict and interrogatories are consistent given legal effect of plaintiff being a keeper |
| Whether there was sufficient evidence (and whether the verdict was against the manifest weight) that plaintiff was a keeper of the dog | Krzywicki: Evidence showed only limited contact with Riggs; insufficient to show physical care/charge | DBM: Testimony (including from a witness) showed plaintiff fed, played with, and cared for the household dog in the month before the attack — sufficient evidence of keeper status | Court: Sufficient competent, credible evidence supported the jury’s finding that plaintiff was a keeper; verdict not against manifest weight |
| Whether denial of mistrial was reversible after defense counsel’s comment in opening that “plaintiff sued two defendants” | Krzywicki: Comment implied settlement/payment by dismissed defendant and prejudiced jury; warranted mistrial | DBM: Comment was benign/contextual about parties and did not cause unfair prejudice; curative instruction sufficed | Court: Trial court did not abuse discretion in denying mistrial; jury presumed to follow curative instruction |
Key Cases Cited
- Khamis v. Everson, 88 Ohio App.3d 220 (holding a "keeper" is not within the class protected by R.C. 955.28 and thus cannot recover under that statute)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (standards for reviewing sufficiency and weight of the evidence in civil cases)
- Natl. Union Fire Ins. Co. of Pittsburgh v. Wuerth, 122 Ohio St.3d 594 (settlement/release of servant can exonerate master; rule applies to vicarious liability)
- Losito v. Kruse, 136 Ohio St. 183 (settlement with servant affects employer/master liability)
- Hartford Cas. Ins. Co. v. Easley, 90 Ohio App.3d 525 (verdict must be reasonably supported by the evidence)