Lead Opinion
{¶ 1} Today this court must decide whether a plaintiff pursuing a claim for bodily injuries caused by a dog must elect either a statutory remedy under R.C.
Facts
{¶ 2} Yoshanta Beckett, plaintiff and cross-appellee (“plaintiff’), filed a personal-injury action against Richard Warren and Mary Wood, defendants and cross-appellants (“defendants”), on behalf of her minor child, who was bitten on the head by Warren and Wood’s dog. The suit contained three counts: two common-law negligence claims and one statutоry claim for damages under R.C. 955.28.
{¶ 3} The trial court required Beckett to choose between pursuing either the statutory or common-law remedy. Beckett chose the statutory remedy, and ultimately the jury entered a verdict in favor of Beckett for $5,000 in damages. Beckett moved the court for a new trial pursuant to Civ.R. 59(A)(4) and (6) and argued that the damages award was inadequate and that the judgment was not sustained by the weight of the evidence. The trial court denied Beckett’s motion for new trial.
{¶ 4} On appeal, the Court of Appeals for Summit County held that a party may simultaneously pursue claims for a dog-bite injury under R.C. 955.28 and common-law negligence. Thus, the court of appeals rеversed the judgment of the trial court and remanded the matter to the trial court for a new trial on Beckett’s statutory and common-law claims. Beckett v. Warren, 9th Dist. No. 23909,
{¶ 5} Both parties appealed to this court. The court of appeals certified a conflict between its decision in this case and the case the trial court relied on, Rodenberger v. Wadsworth (Nov. 25, 1983), Ottawa App. No. OT-83-18,
{¶ 6} This court determined that a conflict exists and ordered the parties to brief the issue of “[w]hether a plaintiff pursuing a claim for bodily injury damages in a case involving a dog [is] required to elect between pursuing a statutory claim under R.C. 955.28 and a common law claim for negligence.” Beckett v. Warren,
Analysis
Common-Law Cause of Action
{¶ 7} There are two bases for recovery in Ohio for injuries sustained as a result of a dog bite: common-law and statutory. “At common law, the keeper of a
Statutory Cause of Action
{¶ 8} On April 10, 1900, the General Assembly amended a prior statute concerning dogs. The amendment provided: “Any animal of the dog kind that chases, worries, injures, or kills any sheep, lamb, gоat, kid, domestic fowl, animal or person, may be killed by any person, at any time or place. And the owner, owners or harborers of any animal of the dog kind that chases, worries, injures, or kills any sheep, lamb, goat, kid, animal or person, shall be jointly and severally liable to any person so damaged to the full amount of the injury done * * H.B. Nо. 244, 94 Ohio Laws 118.
{¶ 9} This statute later became G.C. 5838 in 1910, which provided: “A dog that chases, worries, injures or kills a sheep, lamb, goat, kid, domestic fowl, domestic animal or person, can be killed at any time or place * * *. The owner or harborer of such dog shall be liable to a person damaged for the injury done.”
{¶ 10} R.C. 955.28, the successor statute currently before the court, imposes strict liability upon the owner, keeper, or harborer of a dog “for any injury, death, or loss to person or property that is caused by the dog” unless the injured individual was trespassing or committing a criminal offense other than a minor misdemeanor on the property. R.C. 955.28(B).
{¶ 11} The statutory cause of action “eliminated the necessity of pleading and proving the keeper’s knowledge” of the dog’s viciousness. Bora v. Kerchelich (1983),
{¶ 12} Turning to the relationship between the common-law and statutory actions fоr damages resulting from bodily injuries caused by a dog, this court held in 1924 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.” Lisk v. Hora (1924),
{¶ 13} Further, this court held that R.C. 955.28, “which imрoses a rule of absolute liability upon the owner or harborer of a dog for damage or injury caused by such dog (with certain exceptions), creates a new and different cause of action in no way dependent upon common-law principles and does not abrogate the common-law right of action for damage or injury caused by a dog. A suit may be instituted either under the statute or at common law.” (Emphasis added.) Warner v. Wolfe (1964),
{¶ 14} The defendants argue, and the conflict case, Rodenberger v. Wadsworth (Nov. 25, 1983), Ottawa App. No. OT-83-18,
Simultaneous Claims in the Same Case
{¶ 15} In answering the certified question and the proposition of law asking whether the two causes of action may be pursued in the same case, we must first look to the plain language of the statute and apply it as written if the meaning is unambiguous. State v. Lowe, 112 Ohio St.3d 507,
{¶ 17} Beyond the issue of whether plaintiffs are permitted to plead both common-law and statutory claims for bodily injuries caused by a dog, the defendants argue that the doctrine of election of remedies demands that they elect only one theory to pursue at trial. See Norwood v. McDonald (1943),
{¶ 18} In addition to their еlection-of-remedies argument, the defendants also argue that the jury may become confused when sifting through the evidence and trying to determine to which cause of action each piece of evidence relates. However, it is the responsibility of the trial judge to provide the jury a plain, distinct, and unambiguous statement оf the law applicable to the evidence presented by the parties to the trier of fact. Marshall v. Gibson (1985),
{¶ 19} To that end, we quote from the First District Court of Appeals’ analysis in McIntosh v. Doddy (1947),
{¶ 21} We agree. When the plaintiff pursues both a statutory and common-law clаim for bodily injuries caused by a dog, a judge can easily instruct the jury that if it finds no evidence of the defendant’s knowledge of the dog’s viciousness, then only compensatory damages under the statutory cause of action are available. In that case, the plaintiff is entitled to compensatory damages to be made whole undеr the intent of the statute. When the plaintiff pursues both a statutory claim and a common-law claim for bodily injuries caused by a dog, a judge can just as easily instruct the jury that if it finds that the plaintiff proved that the defendant had knowledge of the dog’s viciousness and kept the dog in a negligent manner, the jury may award the additional remedy of punitive dаmages under the common-law action. Compensatory damages remain the same under either theory of recovery, i.e., there is no double recovery. The remedies are not inconsistent under the law.
Conclusion
{¶ 22} For all of the reasons above, we hold that a plaintiff may, in the same case, pursue claims for a dog-bite injury under bоth R.C. 955.28 and common law negligence. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
Dissenting Opinion
dissenting.
{¶ 23} Respectfully, I dissent.
{¶ 24} I write to lament what today’s majority opinion proposes to foist on trial judges and juries who litigate cases involving bodily injuries arising out of incidents with dogs. Dog owners have no idea what the court has done to them.
{¶ 25} Pursuant to the Ohio Constitution, whenever a certified conflict exists between appellate districts in Ohio, the Supreme Court has the responsibility to resolve the law. See Section 3(B)(4), Article IV, Ohio Constitution.
{¶ 27} Rather than resolving that conflict and settling the law in a manner in accordance with the existing precedent of this court, the majority has fashioned a new theory of litigating these cases that will create chaos and cоnfusion by directing the commingling of separate and inconsistent causes of action, which will further complicate the task of trial judges — all for no purpose, because the majority admits that only one recovery is possible. Instead of taking the path of simplicity and bringing order out of chaos by following stare decisis, the majority chooses to abandon our precedent and forge a new trail, throwing these cases to the dogs.
{¶ 28} In Warner v. Wolfe (1964),
{¶ 29} In acсordance with that direction, although the complaint alleged claims sounding in negligence as a theory of recovery and also a strict-liability claim pursuant to R.C. 955.28, the trial court judge ordered Yoshanta Beckett, on behalf of her child, to elect which claim would be presented to the jury. Beckett elected to pursuе the statutory claim. Following trial on the statutory claim, the jury returned a verdict of $5,000. On appeal, the Ninth District Court of Appeals in a two-to-one decision reversed that judgment, held that the trial court erred in requiring an election, and remanded for a new trial. Recognizing that its decision conflicted with a case from the Sixth District Court of Aрpeals, the appellate court certified a conflict, bringing the matter to this court.
{¶ 30} In a well-reasoned decision in Rodenberger v. Wadsworth (Nov. 25, 1983), Ottawa App. No. OT-83-18,
{¶ 31} The analysis and reasoning of the Sixth District in Rodenberger is persuasive. The appellate court in Rodenberger noted that in an action under the statute, evidence necessary to prove the common-law theory of recovery — that the dog had previously bitten another and that the owner had knowledge of the
{¶ 32} This insightful analysis did not escape Judge Vukovich of the Seventh District Court of Appeals in Koruschak v. Smotrilla (July 16, 2001), Mahoning App. No. 99 CA 320,
{¶ 33} And in his dissenting opinion in the instant case, Judge Slaby noted that “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. 955.28, it would be nearly impossible for a judge to construct a proрer jury instruction.” Beckett v. Warren (Sept. 17, 2008), Summit App. No. 23909,
{¶ 34} Judge Slaby is exactly correct. It makes no sense to have a trial court judge explain to jurors the law of two inconsistent theories of recovery, and then instruct them to apply the law of one to some facts and the law of another to other facts while ignoring the facts relating to the first rule of law. It is logicаlly inconsistent to tell a jury to consider a dog’s vicious propensity for a common-law negligence claim and, at the same time, instruct the same jurors to ignore that evidence in connection with evidence relating to a statutory claim.
{¶ 35} Our holding in Warner resolves this case, clarifies any budding confusion, and eliminates the inconsistency recognized by astute appellate judges who have dealt with this issue.
{¶ 36} The right to maintain an action at common law for damages resulting from injuries arising out of the negligence of a dog owner is not abrogated by statute, and such a suit may be maintained either under the statute or at common law, but not simultaneously in the same lawsuit.
{¶ 37} The certified question should be answered in the affirmative.