Sanders v. Frank

• Decision Date: 08 September 2015
• Docket Number: No. 2014–T–0074.,2014–T–0074.
• Citation: 37 N.E.3d 1305
• Parties: Heather SANDERS, et al., Plaintiff–Appellant, v. Joseph D. FRANK, Defendant–Appellee.
• Court: Ohio Court of Appeals

37 N.E.3d 1305

Heather SANDERS, et al., Plaintiff–Appellant

v.Joseph D. FRANK, Defendant–Appellee.

No. 2014–T–0074.

Court of Appeals of Ohio, Eleventh District, Trumbull County.

Sept. 8, 2015.

Michael A. Ognibene, Warren, OH, for Plaintiff–Appellant.

Robert F. Burkey, Burkey, Burkey & Scher Co., L.P.A., Warren, OH, for Defendant–Appellee.

Opinion

DIANE V. GRENDELL, J.

{¶ 1} Plaintiff-appellant, Heather Sanders, appeals the judgment of the Trumbull County Court of Common Pleas in favor of defendant-appellee, Joseph D. Frank, and dismissing the Complaint with prejudice. The issues before this court are whether the doctrines of contributory negligence and/or assumption of the risk are applicable where a defendant negligently violates a statutory duty to not allow animals to run at large; whether the rescue doctrine precludes the application of assumption of the risk where a plaintiff voluntarily assists in the capture of horses running at large; whether, under these circumstances, the trial court erred by applying the doctrine of assumption of the risk; and whether, under these circumstances, the trial court's conclusion that contributory negligence and/or assumption of the risk prevented recovery by the plaintiff is against the manifest weight of the evidence. For the following reasons, we affirm the decision of the court below.

{¶ 2} On November 30, 2012, Heather and Shawn Sanders filed a Complaint against Joseph Frank in the Trumbull County Court of Common Pleas. The Complaint alleged that Frank “negligently allowed three horses owned or kept by him to run at large upon the public road/highway and upon unenclosed land, creating a risk of harm to the public,” and that Heather, “attempt[ing] to secure one of the horses * * *, sustained personal injuries.”

{¶ 3} On March 27, 2014, the case (liability only) was tried before a magistrate.

{¶ 4} On May 9, 2014, a Magistrate's Decision: Findings of Fact and Conclusions of Law was issued. In relevant part, the magistrate found as follows:

On July 22, 2011, Heather Sanders sustained an injury while attempting to rescue/restrain a horse named “Kush” that had escaped from Joseph Frank's fenced enclosure. Sanders voluntarily offered her assistance to corral the animal as she had done on other occasions when Frank's horses escaped.

* * *

Initially, the Court finds Frank was in violation of R.C. 951.02 since Kush was a horse who escaped an enclosure and ventured over roads onto the property of another. This equates to “running at large” as prohibited by the statute.

* * *

The court finds Sanders volunteered to assist in the rescue and return of Kush to his enclosure. In addition, the Court finds Sanders knowingly acted with full awareness of the dangers, unpredictability and natural propensities of horses. Therefore, the Court finds implied assumption of the risk applies to Sanders. Although this is not a complete bar to recovery, the Court finds the inherent risks borne without thought by Sanders outweigh the negligence of Frank in allowing the horse to escape its enclosure.

* * *

The Court considered the totality of the circumstances. This was not the first time Kush had escaped from the enclosure. Likewise, this was not the first time Sanders had assisted in his return to the barn. However, at the time of the rescue and corresponding injury, the animal was not on the roadway presenting an imminent threat. Rather, it had already crossed the road and found itself in a field on the other side owned neither by Sanders or Frank. Sanders was not acting to prevent any property damage to her own real estate. The Court finds Sanders assisted with a genuine sincerity in protecting the horse and others from any potential harm. However, the Court finds Sanders was also well aware of the dangers associated with corralling a horse under these circumstances.

* * *

Therefore, the Court finds Frank breached his duty of care in allowing his horse to escape the enclosure. In addition, the Court finds the injury of Sanders was a direct and proximate result of this breach of duty. However, the Court must also find that under the doctrine of implied assumption of the risk/contributory negligence, Sanders was more than fifty-percent responsible for the injuries she sustained as she was certainly aware of the risk in rescuing the horse and proceeded in spite of those risks.

{¶ 5} On May 21, 2014, Sanders filed Objections to the Magistrate's Decision, to which Frank filed a Memorandum in Opposition on July 18, 2014.

{¶ 6} On August 14, 2014, the trial court issued a Judgment Entry, overruling Sanders' Objections and adopting the Magistrate's Decision.

{¶ 7} On August 27, 2014, Sanders filed her Notice of Appeal. On appeal, she raises the following assignments of error:

{¶ 8} “[1.] The trial court committed prejudicial error by applying comparative negligence/assumption of the risk against plaintiff-appellant in favor of defendant-appellee, contrary to R.C. 951.10(A), which provides that negligent horse owners are responsible for all damages caused by their unconfined horses.”

{¶ 9} “[2.] The trial court committed prejudicial error in failing to apply the rescue doctrine which would prevent assumption of the risk from barring plaintiff-appellant Heather Sanders' claim for injuries against the negligent horse owner.”

{¶ 10} “[3.] The trial court committed prejudicial error in finding that plaintiff-appellant voluntarily assumed the risk when there was no other reasonable alternative to alleviate risk of injury to the public.”

{¶ 11} “[4.] The trial court committed prejudicial error by ruling counter to the manifest weight of the evidence, that plaintiff-appellant was more than fifty percent responsible for injuries resulting from her successful efforts to capture defendant-appellee's loose horses.”

{¶ 12} In her first assignment of error, Sanders argues that application of contributory negligence/assumption of the risk where liability is based on animals allowed to “run at large” frustrates the legislative purpose of the statute. At the time of her injury, “[t]he owner or keeper of an animal * * * who permits it to run at large * * * [wa]s liable for all damages caused by such animal * * *.” Former R.C. 951.10.¹ Sanders asserts that it was the legislature's intent that violators be liable for “all damages” without “exception for persons assisting to confine the animal.” Appellant's brief at 7. Sanders, in effect, argues that R.C. Chapter 951 is a strict liability statute.

{¶ 13} As a question of law, we review the issue de novo. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9 (the interpretation of statutes is a question of law and, thus, reviewed de novo).

{¶ 14} Under a statute “interpreted as imposing strict liability,” that is “liability without fault,” “the defendant will be deemed liable per se —that is, no defenses or excuses * * * are applicable.” Sikora v. Wenzel, 88 Ohio St.3d 493, 495, 727 N.E.2d 1277 (2000). “Courts generally agree that violation of a statute will not preclude defenses and excuses—i.e., strict liability—unless the statute clearly contemplates such a result.” Id. at 496, 727 N.E.2d 1277.

{¶ 15} There is no legal authority in Ohio for the proposition that R.C. Chapter 951 imposes strict liability on violators. The cases of which this court is aware hold otherwise.

{¶ 16} The case of White v. Elias, 2012-Ohio-3814, 4 N.E.3d 391 (8th Dist.), involved a substantially similar fact pattern. In that case, the defendant's horses escaped and were at large on the property of a third party. The plaintiff, “who was familiar with the horses,” entered the property of the third party to assist in their capture and was injured as a result thereof. Id. at ¶ 4–7.

{¶ 17} The court of appeals held that R.C. Chapter 951 did not impose strict liability upon the owner or keeper of an animal that runs at large and injures a plaintiff on private property owned by a third party. Id. at ¶ 16. “Neither the legislature nor the Ohio Supreme Court has expressly made a violation of R.C. 951.02 one of strict liability in cases of an animal's presence on a third party's private property.” Id. at ¶ 22.

{¶ 18} The court of appeals cited several cogent reasons to support its holding.

{¶ 19} The Ohio Supreme Court had previously interpreted R.C. 951.02 as “creat [ing] a rebuttable presumption of negligence when an animal is at large and upon a public thoroughfare.” Burnett v. Rice, 39 Ohio St.3d 44, 46, 529 N.E.2d 203 (1988). The court noted that “the imposition of strict liability in the case sub judice would conflict directly with the plain language of [former] R.C. 951.02 that ‘[t]he running at large of any such animal * * * is prima-facie evidence that it is running at large in violation of this section.’ ” Id.; Reed v. Molnar, 67 Ohio St.2d 76, 80, 423 N.E.2d 140 (1981) ( “R.C. 951.02 * * * does not impose a requirement of an absolute and specific nature justifying application of the doctrine of negligence per se ”). The court of appeals in White held that, “[a]lthough in this case the accident occurred on a third party's private property, we find the reasoning of the public thoroughfare cases persuasive.” White, 2012-Ohio-3814, 4 N.E.3d 391, at ¶ 20.

{¶ 20} The court of appeals in White acknowledged that strict liability could potentially apply in a case where liability was premised on trespass, rather than negligence. As in the present case, however, “[t]he horse in [White ] trespassed on [a third party's] property, not on land owned by the [plaintiff].” Id. at ¶ 24. Thus, liability in both cases was premised on the defendants' negligence. While Sanders, like the plaintiff in White, “had permission to be on the * * * property, she was not the owner or occupier of the land,” and “[t]herefore, she cannot recover on a theory of strict liability.” Id.

{¶ 21} As there is no authority for the proposition that Frank is strictly liable for damages resulting from his negligence, there is no impediment to the...