Lead Opinion
{¶ 2} On July 31, 2006, mother and Beckett filed an action for personal injury against Appellees, Richard Warren and Mary Wood for injuries Beckett sustained when Warren and Wood's dog (Roly Poly, a Rottweiler/Shar-Pei mix) bit Beckett on the head in March of 2006. The complaint set forth two causes of action for negligence and one cause of action for strict liability under Chapter
{¶ 3} Beckett timely appealed and raises three assignments of error. We have rearranged the assignments of error to facilitate our review.
"THE TRIAL COURT ERRED IN REQUIRING THE MINOR CHILD TO CHOOSE STRICT LIABILITY (AND THUS NO PUNITIVE DAMAGES OR EVIDENCE OF PRIOR ATTACKS/BITES) OR MAKING THEM PROVE NEGLIGENCE IN ORDER TO SEEK PUNITIVE DAMAGES[.]"
{¶ 4} In this assignment of error, Beckett argues that the trial court erroneously required her to choose between pursuing a statutory claim under R.C.
{¶ 5} "The decision of whether a remedy is available and appropriate is a question of law, which is reviewed de novo." Telxon Corp. v. SmartMedia of Delaware, Inc., 9th Dist. Nos. 22098, 22099,
{¶ 6} R.C.
{¶ 7} "Under the common law, a plaintiff suing for damages inflicted by a dog under a theory of general negligence must show: (1) the defendant owned or harbored the dog; (2) the dog was vicious; (3) the defendant knew of the dog's viciousness; and (4) the defendant was negligent in keeping the dog." Bowman at ¶ 19, citing Flint v.Holbrook (1992),
{¶ 8} The trial court required Beckett to choose between two theories upon which to proceed аt trial, statutory or common law, based on the authority of Rodenberger v. Wadsworth *4 (Nov. 25, 1983), 6th Dist. No. OT-83-18. Beckett chose to proceed on the statutory claim, but preserved the issue for appeal. Warren and Wood then stipulatеd that Beckett was bitten by their dog and suffered injuries, establishing the first two elements of the statutory claim as set forth in Bowman. Thus, the trial proceeded solely on the third element of a statutory claim, compensatory damages.
{¶ 9} We initially note that this is an issue of first impression in our appellate district although other appellate districts, including this one, have cited Warner v. Wolfe (1964),
{¶ 10} It is true that in Rodenberger, supra, the Sixth District Court of Appeals held that a plaintiff must choose which cause of action he or she will pursue. In reaching that decision, however, theRodenberger court relied on the dicta from the syllabus inWarner, supra. In Warner, the Supreme Court considered whether adoption of Section
{¶ 11} In Rodenberger the court also reasoned that, because evidence that the dog's owner knew it was vicious was necessary for a plaintiff to succeed on the common-law claim but *5 immaterial to the statutory claim, "[a]ssuming that the plaintiff introduced evidence of the dog's viciousness or the owner's negligence, but could not prove all the еlements necessary under the common law, a judgment in favor of such plaintiff under statutory liability would prejudice defendant and be subject to reversal due to the introduction of inadmissible evidence." Id at *2. This Court dоes not agree that a reversal would be required under the scenario suggested by the court inRodenberger. It is often true that evidence immaterial to one cause of action is admissible because that causе of action is being jointly tried with a separate cause of action for which the evidence is material. The logical extension of the rationale relied upon by the court inRodenberger is a conclusion that separate causes of action requiring different evidence can never be tried together. Such, however, is not the law.
{¶ 12} Admittedly, as Judge Vukovich has acknowledged, "it is going to be a daunting task for a jury of lay people to sift through the evidence and properly assign it to one of the two causes of action" in a dog-bite case. Koruschak, supra, at *4 (Vukovich, J., concurring). The answer, however, is not to force a plaintiff to choose between her two valid causes of action. Rather, "it is incumbent upon the trial court to bring clarity out of chaos through its instructions to the jury." Id.
{¶ 13} Based on the foregoing, we hold that a party may simultaneously pursue claims for a dog bite injury under R.C.
"THE TRIAL COURT ERRED IN FAILING TO GRANT A NEW TRIAL WHEN THE JURY AWARD WAS INADEQUATE AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]"*6
"THE TRIAL COURT ERRED IN ADMITTING MEDICAL BILL EXHIBITS WHICH WERE NOT STIPULATED TO AND WHICH WERE NOT PROPERLY AUTHENTICATED UNDER OHIO LAW[.]"
{¶ 14} As the resolution of the third assignment of error renders moot the first and second assignments of error, we decline to address them.
{¶ 15} This matter is remanded for a new trial on both Beckett's statutory and common-law claims.
{¶ 16} Judgment rеversed and remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this documеnt shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mаil a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30. *7
Notes
Costs taxed to Appellees.
MOORE, P. J. DICKINSON, J. CONCUR
Dissenting Opinion
{¶ 17} I respectfully dissent from the majority's resolution of Beckett's last assignment of error. I would hold that the trial court properly required Beckett to choоse between a claim under R.C.
{¶ 18} In Warner, the Supreme Court of Ohio held that, "`[t]he right to maintain an action at common law for damages resulting from injuries, which by his negligence the owner of a dog suffers such animal to commit, has not been abrogated by statute and such suit may be maintained either under the statute or at common law.'" (Emphasis added.) Id., quoting Lisk, Adm'r, v. Hora (1924),
{¶ 19} The Sixth District Court of Appeals relied upon Warner for the conclusiоn that a plaintiff must choose his theory of liability.Rodenberger v. Wadsworth (Nov. 25, 1983), Sixth Dist. No. OT-83-18, at *2. The Rodenberger court held that "the words, `either under the statute or at common law' indicate that the plaintiff in a dog bite case may not proceed under both theories оf liability[.]" Id. TheRodenberger court concluded that common law and statutory claims could not be maintained simultaneously because: *8
"in an action under the statute, `evidence tending to show that the dog had bitten another рerson prior to the time that the plaintiff was bitten, and that defendant had knowledge thereof, is inadmissible.' Thus, if a plaintiff were allowed to proceed under both theories of liability, evidence needed tо establish the element of viciousness necessary under the common law theory would be inadmissible if the theory of statutory liability were also pursued. *x*x* [T]he trial court did not err in requiring the appellants to eleсt which theory they desired to pursue at trial." Rodenberger at *2, quoting Kleybolte v. Buffon (1913),
. 89 Ohio St. 61
{¶ 20} I find the reasoning of the Sixth District Court of Appeals persuasive. Even had the Supreme Court of Ohio not expressly stated that a party could maintain either a statutory claim or a common law negligence claim, if both claims were allowed to proceed to trial and the evidence necessary to establish the negligence claim were admissible despite the requirements to establish a claim under R.C.
{¶ 21} Based on the foregoing and given the Warner Court's notation that a victim of a dog bite may recover under either R.C.