Schneider v. Kumpf, 26955.
| Citation | 58 N.E.3d 1220 |
| Decision Date | 29 July 2016 |
| Docket Number | No. 26955.,26955. |
| Parties | Barbara SCHNEIDER, Plaintiff–Appellant v. Mark KUMPF, Defendant–Appellee. |
| Court | United States Court of Appeals (Ohio) |
David M. Gast, Christian A. Jenkins, Jeffrey S. Goldenberg, Todd B. Naylor, Cincinnati, OH, for Plaintiff–Appellant.
Michael W. Sandner, Mary E. Montgomery, Joseph D. Saks, Assistant City of Dayton Prosecutors, Dayton, OH, for Defendant–Appellee.
WELBAUM
, J.
{¶ 1} In this case, Plaintiff–Appellant, Barbara K. Schneider, Administrator of the Estate of Klonda S. Richey, appeals from a judgment dismissing her claims against Defendant–Appellee, Mark Kumpf. In support of her appeal, Schneider contends that the trial court erred in dismissing her action against Kumpf on the basis that Kumpf neither owned nor harbored the dogs that killed Klonda Richey.
{¶ 2} We conclude that the trial court erred in dismissing Schneider's claim against Kumpf, because any claim for damages is not restricted solely to claims against owners, keepers, or harborers of a dog. Furthermore, while R.C. Chapter 955 does not provide a private cause of action for statutory violations of a dog warden's duties, additional exploration is required regarding whether a special relationship existed between Appellant's decedent and Kumpf, such that Kumpf had a duty of care to the decedent for purposes of tort liability. Accordingly, the judgment of the trial court will be reversed and this cause will be remanded for further proceedings.
{¶ 3} This case arises from events leading up to Klonda Richey's unfortunate death at the hands of two large-breed Pit Bulls, Mastiffs, or Cane Corsos on February 7, 2014. Because this case was dismissed at the pleading stage, the allegations in the complaint will be assumed to be true for purposes of our discussion.
{¶ 4} According to the complaint, Richey had lived in her home at 31 East Bruce Avenue in Dayton, Ohio, for at least 24 years prior to her death. In March 2011, Andrew Nason purchased the home next door, and then began living at the home with Julie Custer. Nason and Custer owned two dogs, and Richey began experiencing problems with the dogs no later than August 2012.
{¶ 5} In July 2006, Defendant–Appellee, Mark Kumpf, was hired as the Director of the Montgomery County Animal Resource Center (“ARC”) and as the Montgomery County, Ohio, Dog Warden. Kumpf was still serving in those capacities at the time of Richey's death. Kumpf had been involved in animal control since the early 1990's, and had changed his philosophy from an “enforcement mode” to an “education mode.” In the enforcement mode, Kumpf's approach had been to see how many animals he could pick up, how fast the animals could be gotten off the road, and how many summonses he could write. In this mode, he averaged 100 to 150 citations per month. In contrast, Kumpf's education approach involved issuing fewer summonses and focusing citations on the more serious cases.
{¶ 6} After Kumpf came to Montgomery County in 2006, he changed the focus of the ARC from enforcement to education. The number of citations issued to citizens dropped by more than 33 percent in the first two years of his tenure. At first, Kumpf's bosses were concerned about a drop in revenue. However, Kumpf pointed out that he had taken in 2,000 fewer animals, and that licensing and adoption revenues had increased.
{¶ 7} Kumpf also instructed his deputy wardens to write fewer citations because he believed the courts were not doing their job, and were notoriously unhelpful with citation fines and enforcement. In the two years before Richey's death, out of more than 20,000 calls about animals, only about 697 (about 3.4 percent) resulted in citations. Of 60,000 dogs in Montgomery County, only 12 were designated as “nuisance” or “dangerous” dogs in 2013.
{¶ 8} Kumpf was under the impression that before an animal control officer can issue a citation for a “dog at large,” the officer must witness the dog off an owner's property and not under the owner's immediate control. However, at Kumpf's direction, officers were not patrolling. In addition, also at Kumpf's direction, dispatchers routinely refused to answer phone calls requesting service during business hours. Instead, dispatchers pushed a “divert” button on the phone and calls were sent to voicemail. All of the calls Klonda Richey made to ARC went to voicemail.
{¶ 9} Richey made about 13 calls to the Montgomery County Regional Dispatch Center and at least 13 calls to ARC to complain about Nason's dogs. The problems were severe enough that Richey paid to have a fence installed between the two houses and to have a security camera pointed at Nason's home to capture video surveillance of the dogs entering her property unrestrained and off leash. In one of the calls, Richey reported that Nason “let his aggressive pit/mastiff run loose while she was walking to work and threatened to let it have her for a treat.” Doc. # 13, First Amended Complaint, ¶ 14. According to Kumpf, he met with ARC officers daily to discuss calls that had been received. As a result, Kumpf would have been aware of Richey's calls and complaints.
{¶ 10} On August 8, 2012, Richey called ARC to complain that the dog from 35 Bruce (Nason's property) was loose and had charged her. The ARC officer noted that Richey had called the police, who responded, but the dog owners did not answer the door. After the police came out, the dog was reported loose again. An ARC officer came out and issued a written “dog at large” violation for a brown Pit Bull on August 9, 2012.
{¶ 11} On September 25, 2012, Richey called ARC twice to report the dog was loose and was very aggressive. According to their 2012 dog licenses, Nason's dogs were non-neutered male dogs. Kumpf has observed that unaltered male dogs are involved in the majority of fatal attacks. An ARC officer responded the following day and issued another written warning for a violation of R.C. 955.22(C)
. The field activity report for this incident indicated that there were no prior violations for this owner, which was untrue.
{¶ 12} Richey sought a civil protection order against Nason in Dayton Municipal Court in January 2013, but the protection order was denied. On March 16, 2013, Richey called the ARC to report that the dog was loose again. She told ARC that the dog had come after her before, and that the neighbor would let the dog loose to go after her and her cats. In addition, Richey told ARC that the mailman would no longer deliver mail to the street because of the dog, if the dog is not taken care of (presumably confined). Richey also said the dog had attacked her before. In response to this complaint, an officer knocked at Nason's door, but no one answered. The officer could hear a dog barking, and posted a warning for violation of R.C. 955.10
, R.C. 955.21, and R.C. 955.22(C).
{¶ 13} On May 21, 2013, Richey called to report the dogs were loose again and had chased her. Two days later, an officer responded, and indicated that no one answered Nason's door. The officer did not see or hear a dog, and posted another written warning for a violation of R.C. 955.10
, R.C. 955.21, and R.C. 955.22(C).
{¶ 14} Subsequently, on May 29, 2013, Richey called ARC to report that a Pit Bull Mastiff had been kept outside with no food or water the day before, and that the owner had taken the dog off the chain and told it to attack her. The activity card for this incident indicated that there were prior violations, and that the dog had no license. The complaint does not indicate that Kumpf took any specific action as a result of this incident.
{¶ 15} On July 21, 2013, ARC received a call from the Montgomery County Sheriff's Office regarding 35 Bruce Avenue. The police indicated that two Bull Mastiffs were loose and were chasing the caller, who was identified as Richey. The ARC officer reported that he was unable to make contact with the dog owner. On July 22, 2013, the ARC received another call about 35 Bruce Avenue, indicating that two Bull Mastiffs were loose again. The report indicates that there were several prior violations, including one from the previous day. The following day (July 23, 2013), an ARC officer responded and issued another warning.
{¶ 16} On August 5, 2013, Richey called to report that Nason was now putting one of the Pit/Mastiff dogs in her yard to scare her. The activity card for that date noted there were several prior violations and no license for 2013 on file. The ARC officer responded and noted that no one was home and that the officer did not see or hear any dogs. A written warning for violations of R.C. 955.21
and R.C. 955.22(C) was posted.
{¶ 17} Richey called the ARC again on September 9, 2013, to report that a brown Pit/Mastiff was loose on the street. An officer once more issued warnings for violation of R.C. 955.21
and R.C. 955.22(C). A few days later, on September 12, 2013, Richey called ARC to report that the Mastiff was loose again the previous evening. The activity card noted that there was no current license, and that there were several prior violations. An ARC officer responded, and again made the same notations that had been made on September 9, 2013, about no one answering the door, no dog being loose, etc. Although the ARC's summary database indicates written warnings were issued at this time, the record of what specific violations were included was not released in response to a public records request.
{¶ 18} On September 24, 2013, a complaint was made about a white Bull pup that was running loose. The activity card noted that the owner had two brown Mastiffs, and that there had been several prior violations. On the following day (September 25, 2013), an ARC officer responded and noted that there was no response to a knock on Nason's door. The officer could hear a dog inside. A written warning for violations of R.C. 955.21
“x 3” (presumably for the three dogs) and one violation of R.C. 955.22 (for the puppy) were...
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