Jones v. HolmesJones v. Holmes
- Reporters:
- ,
- Before:
- M. Powell, Ringland, S. Powell
M. POWELL, J.
{¶ 1} Plaintiff-appellant, Harold D. Jones, Sr., appeals a decision of the Butler County Court of Common Pleas granting judgment in favor of defendant-appellee, Trisha Holmes, in a personal injury action involving a dog attack.
{¶ 2} In July 2010, Holmes lived with her infant daughter in a single-family home in
{¶ 3} That same morning, around 9:00 a.m., Jones was walking his dog Buddy in the 1800 block of Lamberton Street. Jones and Buddy were on the sidewalk across the street from Holmes’ house when Jones saw a pit bull coming their way from Holmes’ front yard. The pit bull crossed the street and attacked Buddy. As Jones was trying to separate the dogs, the pit bull attacked him and bit him. Jones suffered a gash on a finger which required stitches, and bruises to his knees, shoulders, and back. Buddy suffered a lesion on the left side of his neck which required veterinary treatment. It is undisputed that Holmes was at work when the attack occurred on the street. It is also undisputed that the pit bull was owned by Moon.
{¶ 4} In January 2011, Jones filed a complaint against Holmes and Moon alleging strict liability and common law negligence claims. Holmes filed an answer, Moon did not. A bench trial was held on May 31, 2012. Moon failed to appear before the court.
{¶ 5} On August 21, 2012, the trial court granted judgment in favor of Holmes, and against Moon, and awarded $12,000 in damages to Jones. The trial court found that Moon was strictly liable for Jones’ injuries under
{¶ 6} Jones appeals, raising two assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN FAILING TO FIND THAT DEFENDANT HOLMES WAS A HARBORER PURSUANT TO
{¶ 9} Jones argues that the trial court erred in finding that Holmes was not a harborer of the dog under
{¶ 10}
{¶ 11} In determining whether a defendant is a harborer of a dog, the central focus of a court‘s analysis “shifts from possession and control over the dog to possession and control of the premises where the dog lives.” Flint v. Holbrook, 80 Ohio App.3d 21, 25 (2nd Dist.1992). “[A] ‘harborer’ is one who is in possession and control of the premises where the dog lives, and silently acquiesces in the dog‘s presence.” Id.
{¶ 12} “‘Acquiescence’ is essential to ‘harborship’ and requires some intent.” Thompson v. Irwin, 12th Dist. No. CA97-05-101, 1997 WL 666079, *10 (Oct. 27, 1997),
{¶ 13} In the case at bar, Glass, Moon, and the dog arrived at Holmes’ residence in the middle of the night unannounced and uninvited. Holmes was asleep when the men and the dog arrived. Holmes’ testimony indicates she became aware of the dog‘s presence, and “allowed it to happen,” sometime between the time they arrived and the time she left for work the next morning. It is undisputed that Holmes never cared for the dog. Holmes testified that she never saw the dog while it was in her house.
{¶ 14} In order to be a harborer, a person must have possession and control of the premises where the dog lives, and silently acquiesce in the dog being kept there by its owner. Flint, 80 Ohio App.3d at 25; Sengel, 16 Ohio Supp. at 139. There is no evidence in the case at bar that the dog ever made his home or lived at Holmes’ house. Holmes was, therefore, not a harborer of the dog. See Rucker v. Taylor, 5th Dist. No. 92CA-E-12-044, 1993 WL 289912 (July 12, 1993) (veterinarian not a harborer of a dog that injured someone while in the waiting room with its owner); Sengel at 140 (daughter found to be a harborer of her mother‘s dog where mother and her dog lived with daughter, where daughter had control and possession of the premises, and where by daughter‘s acquiescence, dog made its home on the premises). “A person is not a harborer, * * * even if he acquiesces to a dog‘s presence on property over which he has possession and control, if the dog does not regularly live at that property.” Root v. Thousand Adventures of Ohio, Inc., 9th Dist. No. 96CA006477, 1997 WL 164313, *2 (Apr. 2, 1997), citing Rucker.
{¶ 15} Jones cites three cases for the proposition that a defendant can be liable as a harborer under
{¶ 16} In Padgett, the defendant specifically borrowed a relative‘s dog to guard his property. A child was bitten by the dog the next day as the dog was tied on a leash on the defendant‘s porch. The First Appellate District reversed the trial court‘s grant of a directed verdict in favor of the defendant. The appellate court found that based on the Ohio Jury Instructions “combined definition of ‘keeper or harborer,‘” the plaintiffs had “presented sufficient evidence that [the defendant] was the keeper or harborer of the dog to create a jury question.” Id. at *2.
{¶ 17} In Pickett, an inmate was severely bitten in the face by a dog he was assigned to care for as part of a dog adoption program. The attack occurred the day after the inmate received the dog. The court‘s decision indicates that as part of the training program, a dog assigned to an inmate lived at the prison and was kept in a cage at the foot of the inmate‘s bed. The court of claims held that the inmate could not successfully pursue a strict liability claim against prison officials under
{¶ 18} In Zalud, the plaintiff temporarily moved in with the defendant for two months until she could move into her new home. The plaintiff did not pay rent but helped pay some expenses and had a key. During her stay at the defendant‘s home, the plaintiff was bitten by the defendant‘s dog. The trial court found that the plaintiff was a harborer of the dog under
{¶ 19} In light of the foregoing, we find that Holmes was not a harborer of the dog under
{¶ 20} Jones’ first assignment of error is overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} THE TRIAL COURT‘S JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 23} Jones argues that the trial court‘s finding that Holmes was not a harborer of the dog is against the manifest weight of the evidence.
{¶ 24} When evaluating whether a judgment is against the manifest weight of the
{¶ 25} At the outset, we note that in an action under
{¶ 26} Jones’ second assignment of error is accordingly overruled.
{¶ 27} Judgment affirmed.
RINGLAND, P.J. and S. POWELL, J., concur.