2018 Ohio 4623
Ohio Ct. App.2018Background
- On May 25, 2015, Byron Vallejo and his 4-year-old daughter were attacked by an Old English Bulldog kept by tenant Paul Hughes at 2037 Shawbury Ct. W.; homeowner/landlord Johanna Haynes owned the property.
- Plaintiffs sued Hughes (defaulted) and Haynes asserting (1) statutory strict liability under R.C. 955.28(B) / confinement duty under R.C. 955.22(C)(1), and (2) common-law negligence for failing to confine a dangerous dog.
- Haynes initially denied knowledge of a written lease in discovery but later produced a 2012 written lease (and affidavit) showing Hughes as tenant; Haynes testified she moved off the property in 2012, receives rent, pays taxes, insures the house as a rental, and handles repairs.
- The trial court granted Haynes summary judgment, finding she was an out-of-possession landlord (not owner/keeper/harborer), had no knowledge of the dog’s viciousness, and thus was not strictly liable or negligent.
- Plaintiffs challenged: the late production of the lease, credibility findings, whether Haynes was a landlord versus a harborer/keeper, applicability of statute of frauds to residential leases, and whether Haynes had implied knowledge of the dog’s viciousness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused discretion by considering lease and affidavit filed with Haynes' reply and denying plaintiffs' motion to strike / sur-reply | Haynes improperly submitted new evidence and arguments in reply, prejudicing plaintiffs | Lease merely corroborated prior deposition testimony and was properly authenticated; no new legal theory raised | No abuse of discretion; lease and affidavit properly considered |
| Whether Haynes' credibility created a genuine issue of fact on landlord status | Haynes’ inconsistent discovery responses and late lease production raise credibility issues preventing summary judgment | Deposition testimony and documentary evidence (rent payments, insurance, taxes, repairs) are uncontroverted and establish landlord status | Credibility not determinative; Haynes is landlord as a matter of fact |
| Whether Haynes was a "harborer" or otherwise liable for tenant’s dog | Plaintiffs: landlord retained enough control or acquiesced so as to be a harborer or keeper | Haynes: lease/tenancy transferred possession/control to tenant; routine landlord acts don’t establish control over premises where dog lived | Haynes was an out-of-possession landlord, not a harborer or keeper; no liability under R.C. 955.28 or common law |
| Whether plaintiffs raised implied/constructive knowledge of the dog’s dangerousness | Plaintiffs: facts exist that should have put Haynes on inquiry notice of the dog’s viciousness | Haynes: no evidence she knew or had reason to know; no reports or contacts sent to her that would trigger inquiry | No evidence supporting implied knowledge; negligence claim properly dismissed |
Key Cases Cited
- Beckett v. Warren, 124 Ohio St.3d 256 (2010) (describes statutory and common-law bases for dog-bite recovery)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (1996) (standard for appellate review of summary judgment)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (moving party’s initial burden in summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (1977) (summary judgment evidentiary sources under Civ.R. 56)
- Turner v. Turner, 67 Ohio St.3d 337 (1993) (discussion of credibility concerns in summary judgment)