Brown v. Terrell

• Decision Date: 27 June 2018
• Docket Number: No. 28845,28845
• Citation: 2018 Ohio 2503,114 N.E.3d 783
• Parties: Thomas BROWN, et al., Appellant v. Yvonne TERRELL, et al., Appellee
• Court: Ohio Court of Appeals

114 N.E.3d 783

2018 Ohio 2503

Thomas BROWN, et al., Appellant

v.Yvonne TERRELL, et al., Appellee

No. 28845

Court of Appeals of Ohio, Ninth District, Summit County.

Dated: June 27, 2018

JESSICA M. BACON, Attorney at Law, Boston Heights, for Appellant.

PAUL R. MORWAY, Cleveland, and DAVID P. STADLEY, Attorneys at Law, for Appellee.

DECISION AND JOURNAL ENTRY

TEODOSIO, Presiding Judge.

{¶ 1}Plaintiff-Appellant, Thomas Brown, appeals from the order of the Summit County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee, Yvonne Terrell("Yvonne").This Court affirms.

I.

{¶ 2} In February of 2016, Mr. Brown's seven-year-old son ("T.L.") was playing ball outside with his sister on their driveway.At some point, the ball rolled into a space close to where the next-door neighbor's pit bull was chained.The dog broke free from its chain and attacked T.L.The dog bit through T.L.'s ankle and fractured the bone, which required surgery and implants.The owner of the dog, Territa Terrell("Territa"), lived next door at 758 Kipling Street, Akron, Ohio.Territa's grandmother, Yvonne, co-owns the house at 758 Kipling Street with her brother, but neither of the two siblings has lived there recently.Yvonne permits Territa to live there, but no written lease agreement exists.Territa rarely pays rent, but does pay for utilities at the house.Yvonne pays for homeowners' insurance and was initially paying a friend to perform maintenance on the property, but at some point Territa took over the maintenance responsibilities.

{¶ 3} Mr. Brown filed a personal injury complaint on behalf of his son against Territa and Yvonne for both common law negligence and strict liability, seeking damages for medical expenses and pain and suffering as a result of the dog bite.He alleged that Territa owned the dog while Yvonne kept or harbored the animal.Yvonne filed a motion for summary judgment claiming that she was not the owner, keeper, or harborer of the dog.Allstate Indemnity Company("Allstate") intervened as a third-party defendant and filed its own motion for summary judgment, claiming no duty to defend or indemnify Territa under the landlord insurance policy issued to Yvonne.The trial court granted summary judgment in favor of both Yvonne and Allstate.

{¶ 4} Mr. Brown now appeals from the trial court's order granting summary judgment and raises one assignment of error for this Court's review.On appeal, he only challenges the granting of summary judgment in favor of Yvonne.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ON THE ISSUE OF HARBORER WHEN PLAINTIFF PRESENTED EVIDENCE INDICATING THAT YVONNE TERRELL CONTROLLED THE PREMISES WHERE THE DOG RESIDED AND ACQUIESCED TO THE DOG'S PRESENCE.

{¶ 5} In his sole assignment of error, Mr. Brown argues that the trial court erred in granting summary judgment in favor of Yvonne because he set forth evidence creating a genuine issue of material fact regarding whether Yvonne was a harborer of the dog and the court improperly weighed the evidence presented.We disagree.

{¶ 6} Appellate review of an award of summary judgment is de novo.Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241(1996).Summary judgment is appropriate under Civ.R. 56 when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party.Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267(1977), citingCiv.R. 56(C).A court must view the facts in the light most favorable to the nonmoving party and must resolve any doubt in favor of the nonmoving party.Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138(1992).A trial court does not have the liberty to choose among reasonable inferences in the context of summary judgment, and all competing inferences and questions of credibility must be resolved in the nonmoving party's favor.Perez v. Scripps–Howard Broadcasting Co. , 35 Ohio St.3d 215, 218, 520 N.E.2d 198(1988).

{¶ 7}The Supreme Court of Ohio has set forth the nature of this burden-shifting paradigm:

[A]party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims.The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case.Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims.If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied.However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264(1996).

{¶ 8} In Ohio, the two bases for recovery for injuries sustained as a result of a dog bite are common law and statutory:

[I]n a common law action for bodily injuries caused by a dog, a plaintiff must show 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 dog was kept in a negligent manner after the keeper knew of its viciousness.

* * *

[I]n an action for damages under R.C. 955.28, the plaintiff must prove (1) ownership or keepership [or harborship] of the dog, (2) that the dog's actions were the proximate cause of the injury, and (3) the damages.* * * [T]he defendant's knowledge of the dog's viciousness and the defendant's negligence in keeping the dog are irrelevant in a statutory action.

Beckett v. Warren , 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 7-11."An owner is the person to whom the dog belongs."Bowman v. Stott , 9th Dist. SummitNo. 21568, 2003-Ohio-7182, 2003 WL 23094923, ¶ 11."The keeper has physical charge or care of the dog."Id."A harborer is one who ‘has possession and control of the premises where the dog lives, and silently acquiesces to the dog's presence.’ "Id. , quotingKhamis v. Everson , 88 Ohio App.3d 220, 226, 623 N.E.2d 683(2d Dist.1993)." ‘Acquiescence’ is essential to ‘harborship’ and requires some intent."Id. , quotingThompson v. Irwin , 12th Dist. Butler No. CA97-05-101, 1997 WL 666079, *4(Oct. 27, 1997), quotingGodsey v. Franz , 6th Dist. WilliamsNo. 91WM000008, 1992 WL 48532, *3(Mar. 13, 1992).

{¶ 9} Mr. Brown proceeded on a statutory claim that Yvonne was a harborer of the dog that bit his son, having later conceded in his brief opposing summary judgment that she was neither the owner nor the keeper of the animal.Yvonne filed a motion for summary judgment claiming shewas not a harborer of the dog because she has not lived at 758 Kipling Street since 1975, she was unaware of any pets owned by Territa, she had only seen Territa's dog once in three years, she never had any problems with the animal, Territa paid all the utilities associated with the house, and Territa never requested Yvonne's permission to have a dog at the house.Mr. Brown responded that Yvonne maintained control of the premises where the dog lived, knew of the dog's presence, and acquiesced to the dog residing at the house.He claimed that no landlord-tenant relationship existed between Yvonne and Territa.The parties both relied solely on Yvonne's deposition, which is the only deposition contained in record.

{¶ 10}The trial court found it undisputed that Yvonne did not maintain present possession of the premises, as she did not live there and no evidence was presented that she had keys to the property.The court further found that one could not reasonably infer Yvonne maintained control over the premises from the following limited evidence presented: (1)she was part owner of the property; (2)she maintained an insurance policy for the property; (3)she presumed she had the authority to evict Territa, although she has never actually evicted her; and (4)she once told Territa that she did not want a certain young man to be at the property, but never followed up to determine if Territa obeyed the instruction.Therefore, the trial court found that reasonable minds could only reach but one conclusion: "Yvonne did not maintain possession and control of the premises * * * [and] cannot be held liable as a harborer of the dog that attacked Plaintiff under R.C. 955.22 or common law."

{¶ 11} Mr. Brown now argues that the trial court erred in improperly weighing and determining the sufficiency of the "limited" evidence showing Yvonne was a harborer of the dog because the existence of any evidence is sufficient to render summary judgment inappropriate.SeeHorner v. City of Elyria , 9th Dist. LorainNo. 13CA010420, 2015-Ohio-47, 2015 WL 134218, ¶ 11("If [Appellant] produced anyCiv.R. 56(C) evidence to show the existence of a genuine issue of material fact for trial, then Appellees were not entitled to summary judgment."(Emphasis sic.) ).

{¶ 12}" ‘[I]t is well-established that a lease transfers both possession and control of the leased premises to the tenant.’ "Young v. Robson Foods , 9th Dist. LorainNo. 08CA009499, 2009-Ohio-2781, 2009 WL 1655208, ¶ 7, quotingRicheson v. Leist , 12th Dist. Warren No. CA2006-11-138, 2007-Ohio-3610, 2007 WL...