A dog bite victim in Ohio can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort. Ohio is a strict liability state that makes a dog owner, harborer, or keeper liable for an injury to a person or the property of a person, including a person's dog.
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A dog bite victim in Ohio can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort.
The traditional doctrine that makes a person liable for harm inflicted by a domestic animal is referred to as "scienter" (the Latin word for "knowingly"), "common law strict liability," and "the one bite rule." As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer, or keeper of a dog if (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog's previous conduct. If either of those conditions is not met, however, the victim cannot employ this doctrine as a ground for recovery. See The One Bite Rule.
The one-bite rule is the foundation of dog bite law. It exists in every state. The majority of American states have supplemented it with statutes that make dog owners responsible for all bites including the first one. These so-called "dog bite statutes" sometimes extend to people other than dog owners and injuries other than dog bites. Furthermore, the majority of states impose liability on dog owners and others under a variety of other legal doctrines, including negligence, premises liability, nuisance, and negligence per se for a violation of an animal control law such as a leash law, a law prohibiting dogs from being at large, or a law prohibiting dogs from trespassing. An emerging ground for liability is the dog owner's failure to stop a dog attack after it has begun. If the one-bite rule or any other doctrine works against a victim, therefore, another might support his claim for compensation. See generally Legal Rights of Dog Bite Victims in the USA.
Ohio supplements the scienter cause of action with a dog bite statute. The state, therefore, is classified as a statutory strict liability state. Its dog bite statute makes a dog owner, harborer, or keeper liable whenever his dog injures, bites or causes a loss to a person or to the property of a person (meaning a person's dog or any other property of a person), even the first time. Here is the text of the statute:
Ohio Revised Codes, § 955.28 Dog may be killed for certain acts; owner liable for damages.
(A) Subject to divisions (A)(2) and (3) of section 955.261 of the Revised Code, a dog that is chasing or approaching in a menacing fashion or apparent attitude of attack, that attempts to bite or otherwise endanger, or that kills or injures a person or a dog that chases, threatens, harasses, injures, or kills livestock, poultry, other domestic animal, or other animal, that is the property of another person, except a cat or another dog, can be killed at the time of that chasing, threatening, harassment, approaching, attempt, killing, or injury. If, in attempting to kill such a dog, a person wounds it, the person is not liable to prosecution under the penal laws that punish cruelty to animals. Nothing in this section precludes a law enforcement officer from killing a dog that attacks a police dog as defined in section 2921.321 of the Revised Code.
(B) The 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, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit criminal trespass or another criminal offense other than a minor misdemeanor on the property of the owner, keeper, or harborer, or was committing or attempting to commit a criminal offense other than a minor misdemeanor against any person, or was teasing, tormenting, or abusing the dog on the owner's, keeper's, or harborer's property. Additionally, the 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 if the injury, death, or loss was caused to the person or property of an individual who, at the time of the injury, death, or loss, was on the property of the owner, keeper, or harborer solely for the purpose of engaging in door-to-door sales or other solicitations regardless of whether the individual was in compliance with any requirement to obtain a permit or license to engage in door-to-door sales or other solicitations established by the political subdivision in which the property of the owner, keeper, or harborer is located, provided that the person was not committing a criminal offense other than a minor misdemeanor or was not teasing, tormenting, or abusing the dog.
The statute in this state does not apply, however, if the victim was trespassing, was committing or attempting to commit a crime, or was teasing, tormenting or abusing the dog on the owner's, keeper's, or harborer's property. It also does not apply if the victim was an owner, keeper, or harborer of the dog. Krzywicki v. Gallett (2015) 2015 Ohio 312. The cases have provided definitions of these terms, and examples of victims who are barred under the statute.
- An owner is a person to whom the dog belongs. Garrard v. McComas (1982), 5 Ohio App.3d 179, 182.
- A keeper is a person who has physical charge or care of the dog. Garrard v. McComas (1982), 5 Ohio App.3d 179, 182. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25, 608 N.E.2d 809. In Johnson v. Allonas (Ohio App. Third Dist., 1996) 116 Ohio App. 3d 447, the victim was nothing but a visitor to the house, who took the dog outside to relieve itself. The dog bit her. The court ruled that she was a "keeper" of the dog because she was in physical charge of it when the incident happened. In Marin v. Frick, 2004 -Ohio- 5642 (Ohio App. Dist.11 10/22/2004) a friend of the family went for a walk with a family member and, on that walk, was asked to hold the dog's leash while the family member went to the restroom; the friend was held to be a "keeper" of the dog and therefore was barred from recovery under the statute.
- A harborer is someone who has possession and control of the premises where the dog lives and silently acquiesces to the dog's presence. Godsey v. Franz (Mar. 13, 1992), 6th Dist. No. 91WM000008. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25. Webb v. Prout, 2006 -Ohio- 4792 (Ohio App. Dist.5 09/05/2006). "'Acquiescence' is essential to 'harborship' and requires some intent." Thompson v. Irwin (Oct. 27, 1997), 12th Dist. No. CA97-05-101, citing Godsey v. Franz (Mar. 13, 1992), 6th Dist. No. 91WM000008. In Beuttner v. Beasley (Ohio App. Eight Dist., Cuyahoga, 04-15-2004) Number 83271, 2004-Ohio-1909, 2004 WL 813515, the Eight Appellate District for Cuyahoga County held that a woman whose boyfriend's dog bit her face would not be entitled to recover against the boyfriend for the dog's action where the woman lived with the boyfriend, and cared for the dog on a daily basis. In a similar case, another Ohio court ruled that merely living with a dog owner could possibly make a person a "harborer" of a dog. Bowman v. Stott (Ohio App. Ninth Dist., Summit, 12-31-2003) Number 21568, 2003-Ohio-7182, 2003 WL 23094923.
It must be clearly understood, however, that victims always have the right to bring claims on other grounds. It has been repeatedly held that in Ohio, a suit for damages resulting from dog bites can be instituted under the statute, the common law, or both at the same time. Warner v. Wolfe (1964), 176 Ohio St. 389, 392-393. Bowman v. Stott, 2003 -Ohio- 7182 (Ohio App. Dist.9 12/31/2003). Khamis v. Everson (1993), 88 Ohio App.3d 220, 227.
Ohio also permits a dog bite victim to recover compensation on the ground of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person is negligent. For example, letting a stray dog into a daycare center is negligence. See Negligence.
To recover compensation on the ground of negligence in Ohio, however, the victim must prove the elements of the one-bite rule (i.e., that the dog had the propensity to bite people without justification, and that the owner, harborer, or keeper knew it). "To prevail on a common law negligence claim, the victim must show that the defendant harbored the dog with knowledge of its vicious tendencies." Webb v. Prout, 2006 -Ohio- 4792 (Ohio App. Dist.5 09/05/2006), citing Burgess v. Tackas (1998), 125 Ohio App.3d 294, 297, 708 N.E.2d 285. Similarly, in Bowman v. Stott, 2003 -Ohio- 7182 (Ohio App. Dist.9 12/31/2003), it was held that "[u]nder the common law, a plaintiff suing for damages inflicted by a dog under a theory of general negligence must show: (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 was negligent in keeping the dog." Bowman v. Stott, 2003 -Ohio- 7182 (Ohio App. Dist.9 12/31/2003), citing Flint, 80 Ohio App.3d at 25-26.
Therefore the dog bite victim in this state has to satisfy more requirements than victims who are negligently injured by other means. For example, if a dog owner brought his pit bull to a daycare center, and the dog mauled a toddler, the dog owner would have no liability at all unless it could be proved that the dog had demonstrated the specific dangerous propensity to bite people. The sheer stupidity and recklessness of bringing the dog there in the first place would not be enough to make the dog owner liable in this state.
In Ohio, the violation of an animal control law can result in liability on the part of the violator, whether or not he owns the dog. States, counties, and cities often have laws requiring dogs to be on a leash or prohibiting them from being at large or from trespassing. With few exceptions, courts have ruled that violating such laws can be the basis of liability. In this state, the violation constitutes negligence per se.
Assumption of the risk is not a permissible defense to an action for a dog bite brought pursuant to R.C. 955.28. Pulley v. Malek, 25 Ohio St.3d 95, 495 N.E.2d 402 (Ohio 07/23/1986); see also Quellos v. Quellos (Ohio Ct. App. 1994), 643 N.E.2d 1173.
Ohio law is rather tough against the victim who attempts to make a claim against a landlord. The landlord had to be an owner, keeper, or harborer of the dog. "Keeper" means that the landlord was holding onto the dog when the attack happened, or something similar. The only realistic possibility of holding the landlord liable, therefore, would be that he, she or it was a "harborer." This means that the attack had to happen in a "common area" of the premises. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25, 608 N.E.2d 809, 812. If the bite took place inside the dog owner's apartment, there is no way to hold the landlord liable for it.
For example, a trailer park owner who had a rule that residents could only have one dog was not liable to the victim of a dog bite from a dog owned by a resident who had two dogs, because the trailer park owner was not an owner, keeper or harborer of the dog or of the trailer where the accident happened, and the violation of the one-dog rule did not of itself establish liability. Burgess v. Tackas, 125 Ohio App.3d 294, (Ohio App. 01/20/1998). Allowing the dog onto the common areas, however, would be considered "harboring" and could lead to liability. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25, 608 N.E.2d 809, 812.