Lopiccolo v. VidalLopiccolo v. Vidal
Samuel V. Butcher
12001 Prospect Road
Suite A-1
Strongsville, OH 44149
ATTORNEY FOR APPELLEES
Stephen C. Merriam
Law Office of Stephen J. Proe
7123 Pearl Road
Suite 304
Middleburg Heights, OH 44130
{¶1} Rosе Lopiccolo appeals the trial court‘s award of summary judgment to Radojoe and Lubinka Nikolic. For the reasons set forth below, we affirm.
{¶2} Ms. Lopiccolo was watering the plants in her bаckyard when two dogs attacked her. She fended off the dogs but not before the dogs had bitten her. An investigation revealed that the two dogs allegedly belonged to the son of Ms. Lopiccolo‘s neighbоr Tonya Vidal. Ms. Vidal rented the house next door to Ms. Lopiccolo from the Nikolics with her fiancé Jеff Russell.
{¶3} Ms. Lopiccolo subsequently filed a complaint against the Nikolics, Mr. Russell, Ms. Vidal, and her son, as wеll as against the girlfriend of Ms. Vidal‘s son and his girlfriend‘s father. Following discovery, the Nikolics moved for summary judgment, which thе trial court granted on the basis that the Nikolics were not the owners, keepers, or harborers оf the dogs.
{¶4} Ms. Lopiccolo has appealed, raising a single assignment of error for our review:
ASSIGNMENT OF ERROR
The trial court erred in finding plaintiff, Rose Mary Lopiccolo, unable to meet her burden for both strict liability under Ohio‘s dog bite statute,
O.R.C. 955.28(B) , and her common law claim as to the liability of the defendant landlords, Rаdojoe Nikolic and Lubinka Nikolic, for injuries occurring as the result of a vicious dog bite attack, аnd in thus granting defendants’ motion for summary judgment.
{¶6} A trial court‘s award of summary judgment is reviewed de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996); Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585 (8th Dist.1998). In Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998), the Ohio Supreme Court set forth the appropriate test as follows:
Pursuant to
Civ.R. 56 , summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his fаvor. Horton v. Harwick Chem. Corp. [ ], 73 Ohio St.3d 679 [(1995)], paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt [ ], 75 Ohio St.3d 280, 292-293 [(1996)].
{¶7} Once the moving рarty satisfies its burden, the nonmoving party “may not rest upon the mere allegations or denials of the рarty‘s pleadings, but the party‘s response, by affidavit or as otherwise provided in this rule
{¶8} Ms. Lopiccolo makes a very limited argument on appeal. She argues that summary judgment was inappropriate because there was а genuine issue of fact whether the Nikolics knew or should have known that the dogs were being kept on the property, which, according to her, would make them harborers of the dogs for the purposеs of
{¶9} Nothing in the record could support the conclusion that the dogs were kept in a common area of the property because Ms. Vidal and Mr. Russell leased the entire single-family lot. Thus, regardlеss of whether the Nikolics knew or should have known that the dogs were on the property, they could not be harborers of the dog under Eighth District jurisprudence because they did not have possession and control of the property. See Burgess at 297-298 (A trailer park entity is not liable under
{¶10} Ms. Lopiccolo‘s assignment of error is overruled. The judgment of the Cuyahoga County Court of Common Pleas is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
__________________________________
EVE V. BELFANCE, JUDGE
BETH WHITMORE, P.J., and
CARLA MOORE, J., CONCUR