Lynch v. Lilak, E-08-024 (11-7-2008)Lynch v. Lilak, E-08-024 (11-7-2008)
{¶ 2} Appellee, Mary Fleming, leased premises including a house and garden to Mary Lilak. The premises contained some common areas which Lilak shared with another tenant, including a driveway, grassy areas, and a yard. *2
{¶ 3} Lilak's lease with Fleming specifically prohibited "pets" from the "house." Lilak obtained a dog approximately one year after her lease began. Lilak admittеd to keeping the dog in the house. She also chained the dog to an outside pole several times a day, from which the dog cоuld access the common area of the yard.
{¶ 4} Lilak never told Fleming that she had a dog. When Fleming visited the property, Lilak hid the dog insidе the house out of fear Fleming would see the dog.
{¶ 5} One day, Lilak chained the dog to the pole near the common area аnd left to do errands. After she left, the dog escaped. The dog ran across State Route 113. Lynch alleged that the dog ran across the road just as he was passing on his motorcycle. Attempting to avoid hitting the dog, Lynch lost control of his motorcycle and crashed.
{¶ 6} Lynch sued the dog's owner, Mary Lilak, and her landlords, the Mary Fleming Trust, the John O. Fleming Trust, and Mary Fleming as Agent of said trusts ("landlords"). Lynch and the landlords both filed motiоns for summary judgment. The trial court granted Lynch's motion for summary judgment against Lilak, but denied it as to the landlords. Lilak has not appealed that judgmеnt. The trial court granted summary judgment in favor of the landlords, holding that they were not "harborers" of the dog that inflicted the injuries.
{¶ 7} From that adversе judgment, Lynch assigns the following error for review:
{¶ 8} "Either permission or acquiescence is sufficient to establish a landlord as a harborеr of a dog and the acquiescence or permission necessary to create a landlord's status as a harborer under
{¶ 9} In reviewing the grant of summary judgment, the appellate court stands in the shoes of the trial court and reviews all questions of law de novo. Grafton v. Ohio Edison Co. (1996),
{¶ 10}
{¶ 11} Appellees were not the owners or kеepers of the dog. The issue is whether appellees were "harborers." In order to be a "harborer," there must be: (1) possessiоn and control of the premises where the dog lives, and (2) permission or acquiescence. Godsey v. Franz (Mar. 13, 1992), 6th Dist. No. WM-91-008; Engwert-Loyd v. Ramirez, 6th Dist. No. L-06-1084,
{¶ 12} In Godsey v. Franz, we adopted the definition of "harbor" fromSengel v. Maddox (1945),
{¶ 13} While courts have used the words "permission" and "acquiescence" interchangeably, the outcome is the same. Permit means, "1: to consent to, expressly or formally; 2: to give leave: authorizе 3: to make possible: * * * to give an opportunity." Permission is defined as "1: the act of permitting 2: formal consent: authorization." Acquiesсe is defined as: "to accept, comply, or submit tacitly or passively." Merriam-Webster's Collegiate Dictionary (10 Ed. 1996) 866, 10.
{¶ 14} The trial court fоund that the lease "appears to allow for pets on the premises, however, the owner of this dog went to great lengths to keep the presence of the dog a secret." The lease had only one provision about pets: "No pets allowеd in the house." It said nothing about pets being kept in the common area. Contrary to appellant's argument, silence on the issue dоes not indicate permission. Silence on a particular point in a lease agreement is considered evidence оf intent to exclude the item from the lease. Statler Arms, Inc. v. APCOA, Inc. (1997),
{¶ 15} Appellant also contends that a landlord's status as а harborer does not depend on whether the landlord knew about the existence of a dog, citing Thompson v. Irwin (Oct. 27, 1997), 12th Dist. No. CA97-05-101. Thompson required landlord permission or acquiescence for the dog being kept in the common areas. Despite the landlord's knowledge of the dog, because the landlord did not permit or acquiesce to the *5
dog being kept in the common area, the landlord was not liable. See, also, Burgess v. Tackas (1998),
{¶ 16} Here, every time Fleming would visit, Lilak would hide the dog. Fleming never saw the dog in the common areas — or anywhere, for that matter. Because the landlords did not know about the dog, they cоuld not possibly have permitted or acquiesced to the dog's presence. This argument is not well-taken.
{¶ 17} Last, appellant argues that the law should not require a landlord's knowledge of a particular dog to have acquiescence. The acquiescеnce standard is not as narrow as appellant claims. The standard does not require knowledge of a "specific" dog running loоse on the common areas. If a landlord permitted one specific dog in the common area, and, unknown to the landlord, the tenant kept another dog which ran loose and caused injuries, the landlord would be a harborer of the unknown dog. But, at least, the landlord needs to acquiesce to a dog or dogs being in the common area.
{¶ 18} Lilak testified that she intentionally hid the dog from Fleming. Fleming knew nothing of the dog. Appellant has not raised a genuine issue of material fact on the issue of whether Fleming acquiesced to the dog's presence. Since Fleming was not harboring Lilak's dog, the trial court properly granted summary judgment to appellees.
{¶ 19} For the foregoing reasons, appellant's assignment of error is not well-taken. The judgment of the Erie County Common Pleas Court is affirmed. Appellant is ordered *6
to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J., Mark L. Pietrykowski, P.J., William J. Skow, J., Concur. *1