2023 Ohio 4086
Ohio Ct. App.2023Background
- Zeus, a pitbull-boxer mix owned by Amber Tickle, was left chained to a concrete stake in co-defendant Gene Stemen’s unfenced backyard while the owners were on vacation; Stemen had arranged for a co-worker to check on the dog.
- Neighbor Monica Purcell found Zeus loose in her yard, returned him to Stemen’s yard, resecured him, then fed and watered him from her home; she later moved his chain from the stake to a porch post to improve his range of access.
- Over two days Monica checked on and provided food/water to Zeus on multiple occasions; she testified she acted out of concern for the dog though she was not asked to care for him.
- While attempting to free Zeus’ chain from a stone the following day, Monica was attacked and bitten, suffering nerve damage and medical treatment.
- Plaintiffs sued under R.C. 955.28 (strict liability) and negligence claims; the trial court granted summary judgment for defendants on the strict liability claim, finding Monica was the dog’s “keeper,” and this appeal followed (negligence claims remained).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Monica was a "keeper" of Zeus under R.C. 955.28(B) at the time of the bite, barring recovery under the statute | Monica argued she was not the dog’s keeper because she was not asked or formally charged with care and her interactions were temporary and voluntary | Defendants argued Monica had physical charge and care of Zeus (feeding, reanchoring, checking on him) and thus was a keeper barred from recovery under the statute | Court held Monica was the dog’s "keeper": her repeated, active care and control over Zeus in the owner’s absence made her the person in physical charge or care at the time of the accident, so summary judgment for defendants on the strict liability claim was proper |
Key Cases Cited
- Pulley v. Malek, 25 Ohio St.3d 95 (strict construction of R.C. 955.28; assumption of risk is not a defense)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard for summary judgment review)
- Johnson v. Allonas, 116 Ohio App.3d 447 (a "keeper" is the person in physical charge or care at time of accident; keepers cannot recover under R.C. 955.28)
- Khamis v. Everson, 88 Ohio App.3d 220 (keepers are excluded from statutory protection; keepers/harborers may have common-law remedies)
- Garrard v. McComas, 5 Ohio App.3d 179 (definition of "keeper" as person in physical charge or care)
- Schultz v. State, 32 Ohio St. 276 (definition of "keeper" as one having care, custody, or superintendence)
- Flint v. Holbrook, 80 Ohio App.3d 21 (discusses keeper as person with physical control over a dog)