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    Jeffery-S-Maynard

    A Dog’s Day – In CourtA Taste of Dog Bite Law in Ohio

    Posted on January 13, 2012

    Jeffery S. Maynard   email the author             Share      


    Your dog just bit someone.

    Shock, horror, fear, guilt, worry, uncertainty.  We sometimes forget that our four-legged family members are animals.  A dog bite can be a jarring reminder.  And while there is little anyone can tell you that will prepare you emotionally for such an unfortunate event, knowledge of the law can help you resolve some of the uncertainty.

    In Ohio, there are many myths and perceived rules that surround “dog bite” cases.  For example, many people believe a “one free bite” rule exists.  Others believe special rules apply to certain breeds, such as pit bulls or Rottweilers.  Some assume that any dog bite automatically entitles them to compensation regardless of the circumstances.  While none of these correctly reflects the current state of Ohio law, many continue to embrace these and similar misconceptions.  This discussion seeks to debunk some of these myths and clarify the actual legal standards.

    CAUSES OF ACTION FOR INJURIES CAUSED BY A DOG

    If your dog has bitten or injured someone, the specifics of how and why your dog injured that person can matter a great deal and alter the level of responsibility you may have for the victim’s injuries.  In Ohio, there are two types of legal claims a victim may pursue in court to recover for injuries caused by a dog: (1) a “strict liability” claim under Section 955.28(B) of the Ohio Revised Code; and (2) a common law negligence claim.

    These two different kinds of legal claims have different levels of proof and different available remedies.  The specific facts of a particular dog bite or injury caused by a dog may lend themselves to support either kind of claim or even both.  In fact, the Ohio Supreme Court held that a person may pursue both types of claims in a single lawsuit.  Beckett v. Warren,  2010-Ohio-4, syllabus.

    1.         Statutory Action – “Strict Liability” Claim.

    Section 955.28(B) of the Ohio Revised Code provides that, subject to certain exceptions, an “owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog.”  As this language reflects, recovery is not limited to injury from dog bites, but rather any injury to person or property.  Remember the Bumpuses’ dogs in A Christmas Story?  Under R.C. 955.28(B), the Bumpuses would owe Ralphie’s family a turkey.

    A victim hurt by a dog must prove three elements to recover under R.C. 955.28(B):

    (1) the defendant was the owner, keeper, or harborer of the dog;

    (2) the dog’s actions proximately caused the injury claimed; and

    (3) damages.

    The statute eliminates the necessity of pleading and proving knowledge of the dog’s viciousness, as required in a common law claim.   Likewise, an action under the statute establishes liability without regard to fault or negligence of the owner, keeper, or harborer of the dog.  In other words, you could have the nicest dog in the world and be the most responsible owner too, and neither matters under a statutory claim.

    Moreover, under a statutory claim it does not matter whether your dog has ever bitten anyone before.  The breed of the dog is also irrelevant.

    And here’s another kicker. To incur liability under the statute, the dog doesn’t have to be your dog.  Ohio courts have found that a “keeper” of a dog is a person who has physical charge or care of the dog.   A “keeper” has the duty to manage, care, or control the dog even though he or she does not own the dog.  So, let’s say you’re just watching your brother’s dog for the weekend (a dog you can’t stand and told your brother not to get), and the dog bites someone.  You may not be your brother’s keeper, but under statute, you’re the “keeper” of your brother’s dog.

    A “keeper” can also be a professional service.  For example, a veterinarian or kennel may fall within the definition of “keeper.” This could also include a kid baby-sitting (where the dog is included) or making money as a dog-walker.

    And it gets worse.  You don’t even have to know you effectively have a dog!  A “harborer” of a dog is a person who has possession or control of the property where the dog lives and can be held liable under the statute.  If you have a piece of property that stray dogs call home, you could be a “harborer.”  The statute has no knowledge requirement for a “harborer.”  On the plus side, Ohio courts have generally found that a landlord does not qualify as a “harborer” for liability under R.C. 955.28(B).

    Despite the “strict liability” nature of Section 955.28(B), the statute does have three exceptions where the victim cannot recover for his injuries from a dog.  The first two exceptions bar recovery if the person claiming injury was engaged in certain criminal activity at the time of the injury.  You can think of these as the “guard dog” exceptions.  Specifically, the statute does not apply if the injury occurred while the person was (1) attempting or committing a criminal offense, including criminal trespass, on the property of the owner, keeper, or harborer or (2) attempting or committing a criminal offense against any person.

    Unfortunately, there is a problem with the guard dog exceptions.  These exceptions apply only to misdemeanor and felony criminal offenses, and do not apply if the criminal offense was a minor misdemeanor.  Yeah, you’ve told everyone your dog is smart, but c’mon!

    Fortunately, the statute also takes into account that some people ask for it. The third dog bite exception under the statute says that a person cannot recover for injury that occurred while the person was “teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.”  Ohio courts have defined “teasing” as annoying or pestering with some level of persistence. Courts have defined “tormenting” as “teasing” of the dog that involves a greater degree of annoyance and implies some element of conduct involving torture or evoking pain. “Abusing” is mistreatment that includes physical injury or pain to the animal.

    One big caveat here: kids.  We all know the kind of hell that kids can put a dog through.  Don’t bet on the “teasing, tormenting or abusing” exception applying when your dog has bitten a child, even if the child was being a jerk to the dog.  As a practical matter, courts are more likely to put the burden on the dog owner to keep his dog away from kids than putting the burden on the parents or kid to “beware of dog.”

    Finally, if none of the exceptions apply, a dog bite victim may generally (and usually) recover for all damages caused by the dog.  However, only compensatory damages may be recovered under the statute.  A dog bite victim cannot, for example, recover punitive damages in an action under R.C. 955.28(B). Punitive damages are meant to punish the wrong-doer as opposed to compensate the victim.  Attorney fees are also not available.  To potentially get punitive damages or attorneys fees, the victim needs to bring a common-law negligence action.

    2.         Common Law – Negligence Action

    A dog bit victim may also bring a claim of common law negligence against the dog owner/harborer, in addition to a statutory claim.

    To recover for injuries caused by a dog bite in a common law action, a victim must prove that:

    (1) the defendant owned or harbored the dog;

    (2) the dog was vicious;

    (3) the defendant knew of the dog’s viciousness; and

    (4) the defendant negligently kept the dog after having knowledge of its viciousness.

    Thus, the common law claim is much harder to prove than the statutory claim.  For example, even if the victim proves the dog was “vicious,” a common law claim will fail if the victim cannot also prove the owner/harborer had knowledge of the dog’s vicious propensities.  If the dog has never bitten anyone before, proving the owner had prior knowledge of viciousness could be especially difficult.  However, this should not be construed as dogs getting a “free bite,” since factors other than prior bites can be used to establish viciousness.

    For instance, the dog’s breed could be relevant prior knowledge of “viciousness” of a dog. Even if you believe your dog wouldn’t harm a fly, the fact that your dog is a pit-bull might be enough for a jury to find that you had prior knowledge of your dog’s viciousness.  (Like it or not, when these issues are decided by juries, public conceptions and misconceptions of dog breeds matter).

    Because the common law claim is generally harder to prove, one might wonder why anyone would bother pursuing the common law action at all, since a victim can recover their compensatory damages under R.C. 955.28(B).  Indeed, compensatory damages are the same under either kind of claim, and the victim won’t get awarded compensatory damages twice.  The answer, simply, is punitive damages and attorney fees.   Because R.C. 955.28(B) does not allow punitive damages or attorneys fees, a plaintiff can only recover them by pursuing and establishing a common law claim.  Punitive damages may also open the door to attorneys fees, also not available under the statutory action.

    IF YOUR DOG BITES SOMEONE…

    If your dog bites someone or otherwise causes an injury, call the police and paramedics.  Putting the immediate concerns of litigation aside, like any other accident, getting medical attention to the victim(s) is imperative.  Further, you should contain your dog securely.  Depending on the severity of the attack, the police or animal control may take action with respect to your dog.

    Also, be aware that many insurance policies cover injuries caused by your dog, including homeowners and renters policies.  Contact your insurance company immediately and report the claim.  If you have coverage, the insurance company’s coverage will generally include the cost of defending you should a lawsuit ever be filed by the victim, as well as providing coverage for compensatory damages awardable to the victim.

    For the purposes of protecting yourself in litigation, preserve details of the incident.  For example, details regarding the victim’s actions prior to the dog bite or other injury could be used to determine whether one or more of the exceptions apply in a statutory claim.  Take down the names and information of people who saw the incident.  Collect photos or video that may have been taken at the time.

    It is also important to preserve details about your relationship to the dog.  Are you the owner? Are you watching the dog? Has the dog ever bitten or been aggressive to anyone else?  What is the breed of your dog?  Was your dog ill or under the influence of medication at the time?  Arming yourself with the facts will often improve your chances in litigation.

    No dog owner wants to think about their dog biting or injuring someone (for real, anyway). However, some understanding of the law can be a helpful reminder of how to responsibly take care of your dog and avoid accidents from happening in the first place, and hopefully give you more time to play with your dog.

    A FINAL NOTE FOR PROTECTION OF DOGS

    R.C. 955.28 contains another significant provision, not directly related to civil liability, about which all dog owners should be aware.  R.C. 955.28(A) outlines circumstances under which another person can kill a dog.  R.C. 955.28(A) provides that a dog can be killed if the dog attempts to bite or otherwise endangers or kills or injures a person.  The statute allows a person to kill a dog only during the harmful or potentially harmful conduct—in other words, it allows a person to kill a dog to prevent the dog from causing harm.

    The statute outlines additional circumstances that could mistakenly result in the death of a pet, especially if another person misperceives the dog’s conduct. Specifically, the statute also allows a person to kill a dog if it “is chasing or approaching in a menacing fashion or apparent attitude of attack.”  Ohio courts have interpreted this section as requiring evidence of aggressiveness by the dog and have also held that the statute does not give a person an unfettered right to kill a dog.  For example, in Meyers v. Sparrow, 5th Dist., 2009-Ohio-945, the defendant shot and killed the plaintiff’s dog after the dog came onto defendant’s property.  The defendant argued that R.C. 955.28(A) gave him the right to shoot the dog and that he had no obligation to “retreat” or seek an alternative to killing the dog.  The Court disagreed.  First, the Court concluded that the statute did not apply because the dog was not acting aggressively toward defendant at the time he shot the dog.  Second, the Court rejected defendant’s theory that he had no obligation to retreat, holding that the statute does not permit a person to kill a dog if another viable option exists to avoid harm.

    Finally, the statute also allows a dog to be killed if the dog chases, threatens, harasses, injures, or kills another animal that is the property of another person, except, interestingly, if the other animal is a cat or another dog.  Obviously, this provision is in place primarily to protect livestock.  However, a person may only kill the dog at the time the dog is chasing, threatening, harassing, injuring, or killing the other animal.

    Although Ohio courts have narrowly construed the statute, this provides little comfort to a family whose dog was killed by someone relying on the statute.  To avoid such tragedy, be careful when you have your dog in new areas or around new people, who may mistakenly, though not maliciously, act out of fear.  Most importantly, be watchful for any people in your vicinity who have threatened harm to dogs that come on their property because these people may believe that R.C. 955.28(A) gives them the right to kill the dog regardless of the dog’s conduct.

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