2012 Ohio 4048
Ohio Ct. App.2012Background
- Lopiccolo was attacked by two dogs while watering plants in her backyard; dogs belonged to the son of neighbor Tonya Vidal, who rented next door from the Nikolics with her fiancé Jeff Russell.
- Vidal leased the property next to Lopiccolo from the Nikolics; Vidal and Russell were the tenants in possession and control of the premises.
- Lopiccolo sued the Nikolics, Vidal, Russell, Vidal’s girlfriend and her girlfriend’s father; discovery followed with Nikolics moving for summary judgment.
- The trial court granted summary judgment to the Nikolics on the theory they were not owners, keepers, or harborers of the dogs.
- Lopiccolo appealed arguing there was a genuine issue of material fact whether the Nikolics knew or should have known about the dogs and thus harbored them.
- The appellate court affirmed, holding the landlord could not be a harborer where possession and control rested with the tenants and there were no shared/common areas on the leased property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nikolic harborers under the dog bite statute and common law | Lopiccolo argues Nikolics knew or should have known about dogs, creating harborer liability | Landlords lack possession/control; lease transfers possession to tenants; no harborer without shared areas | Harborer requires possession/control; not harborers here; summary judgment affirmed |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (summary judgment standards; de novo review)
- Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581 (1998) ( Civ.R. 56 standards; burden on moving party)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998) (summary judgment test; three-part inquiry)
- Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679 (1995) (Civ.R. 56 standard; doubts resolved in plaintiff's favor)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (Dresher: moving party bears burden to show no genuine issue)
- Mootispaw v. Eckstein, 76 Ohio St.3d 383 (1996) (Civ.R. 56(E) requirements for nonmoving party response)
- Murphy v. Reynoldsburg, 65 Ohio St.3d 356 (1992) (doubts resolved in favor of nonmoving party)