2022 Ohio 3258
Ohio Ct. App.2022Background
- Plaintiffs Simon and Katie Ward sued after a tenant’s pit bull (Roxie) allegedly pushed a plank in the Wards’ privacy fence, grabbed their dog and bit the Wards when they tried to intervene.
- The property where Roxie lived was owned by Faler Acquisitions Ltd.; tenants Humble and Lauterbach had a written lease that forbade pets without landlord consent and expressly gave prior written consent for the dogs.
- At the tenants’ request, Faler added fencing to the northern portion of its lot but did not fence the border between its lot and the Wards’ privacy fence.
- The Wards asserted four claims against the tenants and Faler: strict liability under R.C. 955.28, negligence per se (R.C. 955.28), common-law negligence, and loss of consortium.
- The trial court granted summary judgment for Faler, concluding Faler was not an owner, keeper, or harborer of Roxie, had no prior knowledge Roxie was vicious, and did not owe an independent duty to complete fencing; the Wards appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Faler was an "owner, keeper, or harborer" under R.C. 955.28 | Faler retained control via lease pet-consent clause and had some fencing activity, so genuine issue whether it "harbored" Roxie | Tenants had possession and control of the leased single-family residence; Faler was not owner or keeper and did not possess/control premises | Court: Faler not a harborer as matter of law—lease consent alone insufficient; no evidence Faler retained possession/control |
| Whether the attack occurred in a common area controlled by Faler | Attack location was an area "common" to Ward and a public utility easement, implying Faler control | Common-area liability applies only where common area is on and controlled by landlord’s property | Court: Injury did not occur in a common area controlled by Faler; common-area theory inapplicable |
| Whether Faler owed a common-law negligence duty (e.g., to finish fencing or buy liability insurance) | After fencing part of its lot, Faler had duty to finish fencing; lease insurance language imposed an obligation to procure public liability insurance | No general duty on landlord to prevent tenant-dog bites absent possession/control or prior knowledge of viciousness; lease did not require Faler to buy insurance | Court: No extra duty; no evidence Faler knew Roxie was vicious; insurance argument not raised below and lease only allowed, not required, landlord to procure insurance |
| Whether summary judgment was proper | Wards: genuine issues of material fact exist on harborer status and negligence | Faler: no genuine factual dispute; entitled to judgment as matter of law | Court: Affirmed summary judgment for Faler—Wards failed to raise triable issues |
Key Cases Cited
- Flint v. Holbrook, 80 Ohio App.3d 21 (2d Dist. 1992) (elements required to prevail under R.C. 955.28)
- Hirschauer v. Davis, 163 Ohio St. 105 (Ohio 1955) (historic precedent on dog-bite liability elements)
- Garrard v. McComas, 5 Ohio App.3d 179 (10th Dist. 1982) (distinguishes owner and keeper definitions)
- Vallejo v. Haynes, 124 N.E.3d 322 (10th Dist. 2018) (defines "harborer" as possession/control of premises plus acquiescence)
- H.W. v. Young, 153 N.E.3d 807 (8th Dist. 2020) (presumption tenants possess/control single-family residence)
- Schneider v. Kumpf, 58 N.E.3d 1220 (2d Dist. 2016) (rejects broadening landlord liability absent possession/control or knowledge)
- Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (Ohio 1998) (summary judgment standard overview)
- Dresher v. Burt, 75 Ohio St.3d 280 (Ohio 1996) (movant’s burden and nonmovant’s required response on summary judgment)