Burnett v. Rice, 87-1686

• Decision Date: 05 October 1988
• Docket Number: No. 87-1686,87-1686
• Parties: BURNETT, Exrx., et al., Appellants, v. RICE et al., Appellees.
• Court: Ohio Supreme Court

Page 44

39 Ohio St.3d 44

529 N.E.2d 203

BURNETT, Exrx., et al., Appellants, v. RICE et al., Appellees.

No. 87-1686.

Supreme Court of Ohio.

Submitted June 7, 1988.

Decided Oct. 5, 1988.

Eddie L. Filhart, Hackett & Butz and John R. Butz, Springfield, for appellants.

Miller, Finney & Clark and Jerome G. Menz, Xenia, for appellees.

PER CURIAM.

Appellants contend that R.C. Chapter 951 imposes strict liability upon owners of animals which run at large upon public thoroughfares and whose activities cause damage to others. R.C. 951.02 provides as follows:

"No person, who is the owner or keeper of horses, mules, cattle, sheep goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land, or cause such animals to be herded, kept, or detained for the purpose of grazing on premises other than those owned or lawfully occupied by the owner or keeper of such animals.

"The running at large of any such animal in or upon any of the places mentioned in this section is prima-facie evidence that it is running at large in violation of this section." (Emphasis added.)

R.C. 951.10 further provides:

"The owner or keeper of an animal described in section[s] 951.01 to 951.02 of the Revised Code, who permits it to run at large in violation of either of such sections, is liable for all damages caused by such animal upon the premises of another without reference to the fence which may enclose such premises." (Emphasis added.)

In Reed v. Molnar (1981), 67 Ohio St.2d 76, 80, 21 O.O.3d 48, 51, 423 N.E.2d 140, 144, this court observed: " * * * [I]n determining whether R.C. 951.02 was violated, the fact finder must weigh the 'reasonableness and correctness' of the owner's 'acts and conduct under the proven conditions and circumstances' * * *." Thus, the court in Molnar held that R.C. 951.02 imposes upon the owners of the animals identified in that subsection a duty of ordinary care.

Appellants maintain however that R.C. Chapter 951 has been amended since the decision in Molnar. R.C. 951.09 previously provided, in relevant part, that "[i]t is a sufficient defense to such prosecution [for violation of R.C. 951.02] to show that the animal was at large without the knowledge or fault of its owner or keeper."

While R.C. 951.09 was effective at the time of the decision in Molnar and has since been repealed, its terms were not dispositive of that case. Rather, the focus of the Molnar court was upon the nature of the duty imposed upon the owner or keeper of the animals. In reviewing prior case law, this court arrived at the following conclusion concerning the relationship between a statutorily prescribed duty and the civil liability arising therefrom:

" 'Where there exists a legislative enactment commanding or prohibiting for the safety of others the doing of a specific act and there is a violation of such enactment solely by one whose duty it is to obey it, such violation constitutes negligence per se; but where there exists a legislative enactment expressing for the safety of others, in general or abstract terms, a rule of conduct, negligence per se has no application and liability must be determined by the application of the test of due care as exercised by a reasonably prudent person under the circumstances of the case.' Eisenhuth v. Moneyhon (1954), 161 Ohio St. 367 , paragraph three of the syllabus. (Emphasis added.) Where a statute imposes a specific requirement or duty, the jury need only determine whether a prohibited act was committed or a required act was omitted, to find the violator of the statute negligent per se. 'But where duties are undefined [in the statute], or defined only in abstract or general terms, leaving to the jury the ascertainment and determination of reasonableness and correctness of acts and conduct under the proven conditions and circumstances, the phrase negligence per se has no application.' Swoboda v. Brown (1935), 129 Ohio [St.] 512, 523 ." (Emphasis sic.) Molnar, supra, 67 Ohio St.2d at 79-80, 21 O.O.3d at 50-51, 423 N.E.2d at 144.

In applying this rule of statutory construction to R.C. Chapter 951, the Molnar decision is unambiguous in its finding that the section set forth a general requirement that animals be confined, but did not prescribe specific methods by which the confinement was to be accomplished. The determination of the appropriate statutory...