708 N.E.2d 285 | Ohio Ct. App. | 1998
Yong Burgess, plaintiff-appellant, appeals the trial court's summary judgment in favor of Libby Aurora Trailer Park, Jack Glazer, Aaron Goldstein, Julius Glazer, and Joe Management Company, defendants-appellees. Burgess argues that the trial court erred in granting summary judgment, because she showed that appellees were negligent when they allowed Terri Tackas and Paul Marino to posses. on their property two dogs in violation of the one-dog rule. This, she says, was the basis for her injuries when she was bitten by one of their dogs. She assigns the following error for our review:
"The trial court erred in granting defendants-appellees' motion for summary judgment"
Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.
Burgess was injured when she visited Tackas and Marino's trailer. She approached the door, and the dog named Rocky, a pit bull boxer or mastiff, attacked her. She was bitten on the head, face, legs, and hands. Her right hand was bitten through and permanently mangled.
Tackas and Marino also owned another dog, Cassandra, a rottweiler. She was with them when they first moved to the park in 1990. They later obtained Rocky in 1992. They never informed the appellees about the second dog.
Appellees' rules limited trailer park tenants to one dog and provided that additional pets were permitted with consent of the management. *296
Jack Glazer was in charge of enforcing the rules. He was the only owner who monitored the day-to-day operations of the trailer park. His son Michael Glazer works as an employee at the trailer park. Jack and Michael stated in their depositions that they did not know of Rocky's existence.
After the trial court granted the appellees' motion, Burgess moved for reconsideration. She attached to her motion an affidavit from Don Gould. Gould also lived in the trailer park and sometimes helped Jack and Michael Glazer doing odd jobs around the trailer park. He stated in his affidavit that prior to the attack on Burgess, he, Jack, and Michael encountered Rocky while they were leveling the roadway. Rocky was tied up outside the Marino trailer. Gould stated that Rocky "growled and barked * * * in a very menacing and threatening manner. * * * [I]f the dog had not been chained up it would have attacked us."
Burgess argues in this appeal that the trial court misinterpreted two cases from Butler County that defined the liability for trailer park owners and managers. Additionally, she argues that even if the court's interpretation is correct, she had sufficient evidence from which a reasonable jury could have ruled in her favor.
Our standard of preview on summary judgment is de novo. We review the judgment of the trial court independently and without deference to its determination. Brown v. Scioto Cty. Bd. ofCommrs. (1993),
Burgess has failed to show that appellees harbored the dog. For strict liability, Burgess is required under the dog-bite statute, R.C.
In order to show that appellees harbored Rocky, Burgess must show that they as landlords permitted the dog in the common areas. Thompson at 4, citing Flint v. Holbrook (1992),
Thompson, in resolving the issue of harboring, explained that a landlord can and should be liable only if the dog attacks someone in the common areas or in an area shared by both the landlord and the tenant. Id. at 4. If the tenant's dog is confined to the tenant's premises, the landlord cannot be said to have possession and control of the premises on which the dog is kept. Id.Thompson clearly limits the landlord's responsibility to the common areas or areas shared by both the landlord and tenant. Here, the dog was clearly on Tackas and Marino's property when the attack occurred. Thus, the landlord cannot be said to have harbored the dog.
Burgess, however, argues that the appellees had a one-dog rule, and this rule was clearly violated. Thus, appellees should be held to have acquiesced and possessed the dog. "A failure to properly enforce park rules does not constitute harboring an animal since the requisite mental intent is lacking. Further, establishing trailer park rules for the maintenance of animals or pets by one's tenants or residents, does not make one an `owner, keeper or harborer of a dog.'" Thompson, supra, citing Bundy,supra.
Nevertheless, Burgess argues that appellees knew about the dog and knew that it was vicious. She offers Gould's affidavit as evidence of this fact. However, the determination as to whether a landlord is a harborer does not depend upon whether the landlord knew about the existence of the dog but depends on whether the landlord permitted or acquiesced in the tenants dog being kept in common areas or in an area shared by both the landlord and the tenant. Thompson, supra, at 5.
In conclusion, this court is struck by some glaring differences in most of the cases decided to date. The majority of the dog-bite cases have occurred in the common areas. The rules that have been established forbid the dogs to roam over the common area. This case is unique because none of these facts exist. The dog was in the trailer when the attack occurred, and the rule limited the tenant to having one dog unless consent was given to have more. To hold the appellees liable would make them quasi owners and possessors of the tenants trailer. It is well established that a lease transfers both possession and control of *298
the leased premises to the tenant. Thompson, supra, at 4, citingRiley v. Cincinnati Metro. Hous. Auth. (1973),
Judgment affirmed.
SPELLACY, J., concur.
O'DONNELL, J., concurs in judgment only.