Ohio Dog Bite Statute – When Man’s Best Friend Isn’t So Friendly
During my first year of law school, we were assigned a research and writing project on the Ohio Dog Bite Statute but, until recently, I had not yet been faced with this legal issue in my practice. In revisiting this area of the law, I found I have a new appreciation for it, both in terms of being able to help my clients and because I now have two German Shepherds of my own. I also realized there are quite a few misconceptions out there as to when a dog bite/attack may be actionable.
Statutory language
The Ohio Dog Bite Statute provides in relevant part:
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.
Ohio Rev. Code 955.28(B). In simpler terms, an “owner, keeper, or harborer” of a dog is strictly liable to anyone their dog injures, unless the injured person was trespassing, committing a criminal offense, or “teasing, tormenting, or abusing the dog on the Owner’s, keeper’s or harborer’s property” at the time of the injury.
Myth: “Dogs in Ohio get ‘one free bite.’”
Many believe that a dog owner (or keeper or harborer) is not liable to a person injured by their dog unless they had reason to know the dog was aggressive. This is often colloquially referred to as a “one free bite” rule. The idea is that the owner is not liable the first time it happens because he or she has no reason to know that the dog is capable of such behavior but, after that, the first bite serves as the “reason to know,” and the owner can be held responsible from that point forward.
Ohio does not have a “one free bite rule.” There is no requirement that the injured person prove negligence, or that the owner knew the dog was dangerous, or even that the owner did anything wrong whatsoever. This is often referred to as “strict liability.” In other words, the “owner, keeper, or harborer” of the dog is liable even if they aren’t at fault. See Allstate Ins. Co. v. U.S. Associates Realty, Inc., 11 Ohio App. 3d 242, 464 N.E.2d 169, 1983 Ohio App. LEXIS 11287 (Ohio Ct. App., Summit County 1983) (finding that R.C. 955.28, the dog bite statute, does not establish negligence per se; rather, the statute establishes liability without regard to fault or the dog owner’s negligence).
Myth: “I can’t be liable if it isn’t my dog.”
The Ohio Dog Bite Statute imposes liability on, not only owners, but also keepers and harborers. Individuals other than the owner of a dog have been found to be harborers or keeper under the statute in several cases throughout Ohio. See, e.g., Lewis v. Chovan, 2006-Ohio-3100 (Ohio Ct. App., Franklin County 2006) (pet groomer found to be a “keeper” under the statute even she was only temporarily exercising control over the dog); Buettner v. Beasley, 2004-Ohio-1909 (Ohio Ct. App., Cuyahoga County 2004) (while boyfriend was technically the owner, his girlfriend was considered a “keeper”); Sengel v. Maddox, 31 Ohio Op. 201 (Ohio C.P. 1945) (finding that a person who is in possession and control of the premises where the dog lives, and silently acquiesces in the dog being kept there by the owner, can be held liable as a “harborer” of the dog).
Exceptions to Liability
In addition to the explicit exceptions set forth in the statute (i.e., if the injured person is trespassing, committing a criminal act, or otherwise tormenting/abusing the dog), case law has carved out a couple of additional caveats. The first is that an injured person cannot recover if they were a harborer or keeper of the dog. For example, in the Lewis case cited above, a pet groomer was determined to be a “keeper” of the dog during the time it was in the groomer’s possession and control. In that instance, the pet groomer likely could not recover against the owner of that dog under the statute for any injury the dog caused while under the groomer’s possession and control – i.e., while he or she was a “keeper.” The same would presumably be true for a veterinarian. Similarly, as set forth in the above Buettner case, a live-in girlfriend can likely not recover against her boyfriend who is, technically, the owner of the dog. In other words, an owner is likely not strictly liable to a keeper or harborer under the statute for injuries that occur while the injured person is considered a keeper or harborer.
Landlord/Tenant Liability
Another niche of the case law interpreting the Ohio Dog Bite Statute exists relative to landlord/tenant situations, i.e., situations where an injured person seeks to hold a landlord liable for injuries sustained after an attack by a tenant’s dog. The cases throughout Ohio tend to be fairly fact specific as to this issue. Most courts have held that landlords can be liable if the attack occurs in a common area (such as a hallway or foyer). See Weisman v. Wasserman, 2018-Ohio-290, 2018 Ohio App. LEXIS 335 (Ohio Ct. App., Cuyahoga County 2018) (finding that a landlord was not entitled to summary judgment where the dog attack occurred in a hallway, which could potentially be considered a common area). The critical question is whether the tenant retained exclusive possession and control over the area in which the attack occurred. See Pangallo v. Adkins, 2014-Ohio-3082, 2014 Ohio App. LEXIS 3018 (Ohio Ct. App., Clermont County 2014) (landlord was not a harborer of the dog because the incident did not occur in a common area, but rather in an area where the tenant had sole possession and control).
It follows that landlord liability is perhaps more common in apartment complexes than, for instance, a situation where the tenant is renting an entire house (where there are likely not “common areas” and the tenant retains possession and control of the entire premises). Additionally, a landlord will generally not be liable where the landlord or lease explicitly prohibits dogs from being on the premises and does not know that about the dog, regardless of whether the attack occurs in a common area. See Lynch v. Lilak, 2008-Ohio-5808, 2008 Ohio App. LEXIS 4865 (Ohio Ct. App., Erie County 2008) (finding that the landlord could not be a “harborer” under the statute where the lease prohibited pets and the landlord did not know of the dog, or permit or acquiesce to the dog’s presence).
Practically speaking, how do these claims work?
Generally, when we evaluate cases, we focus on three key factors: liability, damages, and collectability. With the Ohio Dog Bite Statute, liability is typically a non-issue provided that one of the above-described exceptions does not apply. We also look at damages (such as medical expenses, lost wages, and anxiety when faced with dogs in the workplace). Often, the clients we represent in these cases were treated in an ER setting, were forced to miss some work, have scarring, etc. and are, thus, entitled to compensation for those damages in addition to pain and suffering. Where many cases become complicated is the collectability aspect – in other words, even if we get a judgment against the liable party, will they be able to pay it or do they have assets to which we could attach in satisfaction of that judgment? However, many homeowner’s insurance policies cover liability for injuries caused by the homeowner’s dog, making the collectability question a bit of a non-issue as well.
Conclusion
We understand that it can be difficult to navigate this fairly nuanced area of the law, which, as we’ve seen, is full of misconceptions, exceptions, and caveats. If you have been injured by a dog, we would love to meet with you and walk you through some of your options – at no charge.
For help defending against or pursuing a dog bite claim, contact Casey Jones at 513.943.5673.
