Anderson v. Centrone

2024 Ohio 1021, 239 N.E.3d 468

• Court: Ohio Court of Appeals
• Decided: March 18, 2024
• Docket: 2023CA000117
• Status: Published

Opinion

[Cite as Anderson v. Centrone, 2024-Ohio-1021.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: WILLIAM T. ANDERSON, JR. : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2023CA00117 REGINA A. CENTRONE, ET AL : : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2022CV00366

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 18, 2024

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

GEORGE ORYSHKEWYCH THOMAS J. CABRAL 6100 Oak Tree Boulevard DANIEL G. LONERGAN Suite 200 1215 Superior Ave., 7th Floor Independence, OH 44131 Cleveland, OH 44114 Stark County, Case No. 2023CA00117 2

Gwin, J.,

{¶1} Appellant appeals the August 25, 2023 judgment entry of the Stark County

Court of Common Pleas granting appellee’s motion for summary judgment.

Facts & Procedural History

{¶2} Appellee Roland Centrone is Regina Centrone’s father. Prior to 2019,

Regina moved in and out of appellee’s home. Regina and several of her dogs lived in

appellee’s home in January of 2019, including a dog named Bella. Appellee was angry

when Regina got Bella because appellee was already taking care of several of Regina’s

dogs. Appellee testified he, “didn’t want [Bella]. I didn’t like [Bella]” because Bella had

attacked appellee’s Jack Russell terrier. Appellee tried to control Bella by pulling back on

the dog’s leash, but Regina informed him he could not do that because Bella was

previously abused. Appellee felt that if he could not properly train the dog, the dog could

not stay in his home. Appellee told Regina that Bella was no longer welcome in his home.

{¶3} In the summer of 2019, Regina moved out of appellee’s home into an

apartment attached to a kennel where she worked. Appellee testified that, at that point,

Regina “knew the dog wasn’t allowed back in our house.”

{¶4} Appellant William T. Anderson, Jr. met Regina in August or September of

2020 via an online dating site. Approximately one year later, they moved in together at

appellant’s home that he owned in Rittman, Ohio. When Regina moved into appellant’s

home, she owned three dogs. Initially, the dogs did not come with her to appellant’s

home, as they stayed at the kennel where Regina worked. However, within several weeks

of Regina moving in, she brought the dogs to live with her and appellant at appellant’s

home. Stark County, Case No. 2023CA00117 3

{¶5} Appellant had an eight-foot fence surrounding his back yard. Appellant

testified he would leave the back door open, and the dogs came and went “whenever they

wanted,” until it got cold out. Bella and the other dogs slept “wherever they wanted,” with

Bella usually sleeping with appellant and Regina in the bed. Bella was muzzled when she

was in the home, and was placed in a cage in the living room when she ate. Regina gave

the dog Xanax from the vet to help keep her calm.

{¶6} Regina told appellant Bella never attacked anyone but her. Appellant never

saw the dog act aggressively towards anyone other than Regina. Appellant witnessed

Bella attack Regina once prior to the incident at issue in this case. Appellant told Regina

she needed to get rid of the dog, but Regina did not want to. It was approximately two

weeks after Bella bit Regina that Bella bit appellant. During these two weeks, Bella

remained in appellant’s house with his permission. However, appellant told Regina she

needed to find another place for the dog. Regina informed appellant that appellee would

not let Bella in his home.

{¶7} The incident occurred on December 1, 2021. When appellant arrived home

from work, he and Regina sat on the couch with the dogs, watching television. Regina

got up from the couch. Bella rose up, and appellant felt Bella was going to attack Regina.

Thus, appellant grabbed Bella by the neck, picked Bella up, and tried to put her into her

cage. Appellant did get Bella into her cage, but she jumped out of the cage and was

nibbling at his foot while the muzzle was still on. Appellant does not know how it

happened, but the muzzle came off the dog. Bella then jumped on appellant and grabbed

him. Appellant began “tussling” with the dog. Appellant asked Regina to get the dog off

of him. However, Regina hit appellant with a baseball bat, appellant fell to the ground, Stark County, Case No. 2023CA00117 4

and the dog “had its way with [appellant].” When she hit appellant with the bat, Regina

yelled that appellant “was killing her dog.” At that point, the dog began biting appellant’s

hands.

{¶8} Appellant testified that Regina told him to tell the police that the dogs were

fighting, and he broke it up. Appellant complied with Regina’s request, and told the sheriff

the dogs were fighting and he broke it up. Appellant had pins placed in his hand, and

eventually had to have his finger amputated.

{¶9} Appellant never saw appellee exert any control over Bella. In his mind,

when he was attacked, Regina was the owner of the dog. Appellant testified that no one

else was taking care of the dog except Regina.

{¶10} Appellee admitted that he signed the forms to obtain licenses for the dogs,

including Bella, on July 13, 2020 and January 5, 2021. The form states as follows, “I, the

undersigned, owner, keeper, or harborer of the dog(s) above, declare under penalty of

perjury the information is true and accurate to the best of my knowledge.” Bella was living

at the kennel, not at his residence, when appellee signed these license applications.

{¶11} When asked about the license applications, appellee stated, “all I did was

bought licenses for all the dogs because Regina didn’t have the money or the desire to

buy them.” Appellee continued, “I didn’t know if Regina was going to come back or not.

She was in and out of our house so many times. If she had come back, you know, in

October or something and didn’t have a license, we would get charged for it.”

{¶12} On March 15, 2022, appellant filed a complaint against appellee and Regina

for strict liability pursuant to R.C. 955.28, and common law negligence. Stark County, Case No. 2023CA00117 5

{¶13} Appellee filed a motion for summary judgment on February 22, 2023. On

February 28, 2023, appellant filed a motion for partial summary judgment. The parties

filed responses and replies to the motions.

{¶14} The trial court issued a judgment entry on August 25, 2023 granting

appellee’s motion for summary judgment and denying appellant’s motion for partial

summary judgment. The trial court scheduled a bench trial for the remaining defendant,

Regina Centrone. Subsequently, appellant dismissed Regina Centrone from the case.

{¶15} Appellant appeals the August 25, 2023 judgment entry of the Stark County

Court of Common Pleas and assigns the following as error:

{¶16} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY GRANTING

SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE ROLAND

CENTRONE AND BY DENYING PLAINTIFF/APPELLANT’S MOTION FOR SUMMARY

JUDGMENT.”

Summary Judgment Standard

{¶17} Civil Rule 56 states, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed in

the action, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds Stark County, Case No. 2023CA00117 6

can come to but one conclusion and that conclusion is adverse to the party

against whom the motion for summary judgment is made, that party being

entitled to have the evidence or stipulation construed most strongly in the

party’s favor. A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a genuine issue as

to the amount of damages.

{¶18} A trial court should not enter summary judgment if it appears a material fact

is genuinely disputed, nor if, construing the allegations most favorably towards the non-

moving party, reasonable minds could draw different conclusions from the undisputed

facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The

court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer

Co. v. Browning-Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A

fact is material if it affects the outcome of the case under the applicable substantive law.

Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist.

1999).

{¶19} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The Wedding

Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter

de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243. Stark County, Case No. 2023CA00117 7

I.

{¶20} A plaintiff who suffers an injury as a result of a dog bite may, in the same

case, pursue both a strict liability claim under R.C. 955.28, and a common law negligence

claim. Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624. An “owner”

is the person to whom a dog belongs. Webb v. Prout, 5th Dist. Richland No. 2005 CA

0124, 2006-Ohio-4792. A “keeper” of a dog has physical control or care of the dog, even

if that care and control is temporary. Id. A “harborer” of a dog is one who has possession

and control of the premises where the dog lives, and silently acquiesces to the dog’s

presence. Id.

Strict Liability

{¶21} In his complaint, appellant asserted a strict liability claim pursuant to R.C.

955.28. In both his summary judgment briefing and appellate brief, appellant states he is

“abandoning” the claim pursuant to R.C. 955.28. However, since appellant did not

dismiss this claim, the trial court addressed it in the summary judgment entry.

{¶22} In an action for damages under R.C. 955.28, the plaintiff must prove: (1)

ownership or keepership of the dog; (2) that the dog’s actions were the proximate cause

of the injury; and (3) damages. However, a “victim who owns, keeps, or harbors a dog

cannot recover for injuries inflicted by the dog on him or her” because R.C. 955.28 is

“intended to protect people who are not in a position to control the dog.” Redeye v.

Belohlavek, 8th Dist. Cuyahoga No. 87874, 2007-Ohio-85; Kircher v. Baugess, 12th Dist.

Madison No. CA2013-03-006, 2013-Ohio-4579 (injured keepers cannot avail themselves

of the strict liability protections within R.C. 955.28). In this case, there is no dispute that

appellant was a harborer and keeper of Bella because he exerted temporary control over Stark County, Case No. 2023CA00117 8

the dog and was in possession and control of the premises where the dog lived.

Accordingly, appellant is not within the class of people that R.C. 955.28 was meant to

protect. The trial court did not commit error by granting appellee’s motion for summary

judgment on appellant’s statutory claim.

Common Law Negligence – Dog Bite

{¶23} Appellant first argues the trial court committed error in granting summary

judgment for appellee because there is a genuine issue of material fact as to whether

appellee was the owner of Bella based upon the fact that appellee signed the form to

obtain Bella’s dog license in 2021.

{¶24} Appellant seeks to essentially have this Court find that if an individual

applies for tags for a dog, they are automatically deemed an owner of the dog. We decline

to adopt such a broad rule, and find it is more appropriate to examine the facts and

circumstances specific to each case. However, even if we were to find there are genuine

issues of material fact due to the dog license application as to the ownership of Bella, we

find appellant cannot meet the four criteria necessary for a common-law action.

Accordingly, we find the trial court did not commit error in granting appellee’s motion for

summary judgment, regardless of whether appellee is considered an owner of Bella.

{¶25} Appellant additionally contends the trial court committed error in granting

summary judgment because he put forth some evidence that Regina was negligent in

keeping Bella. However, case law does not support appellant’s interpretation of what is

required to establish common law negligence in a dog bite case.

{¶26} The Supreme Court of Ohio addressed the standard for a common law

action for bodily injuries caused by a dog in Beckett v. Warren, 124 Ohio St.3d 256, 2010- Stark County, Case No. 2023CA00117 9

Ohio-4, 921 N.E.2d 624. In a common law action for bodily injuries caused by a dog, a

plaintiff must show: (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. Id.

{¶27} While appellant argues this language means that appellee himself does not

have to “keep” the dog, the other language contained in the case, and the citations in the

case, do not support appellant’s argument. When discussing whether a plaintiff can

pursue a claim for injury both pursuant to R.C. 955.28 and common law in one case, the

Supreme Court stated, “when the plaintiff pursues both a statutory and a common-law

claim * * * a judge can just as easily instruct the jury that if it finds that the plaintiff proved

that the defendant had knowledge of the dog’s viciousness and kept the dog in a negligent

manner, the jury may award * * * punitive damages under the common-law action.” Id.

The Court clearly stated that to recover under common law, the jury must find the

defendant had knowledge of the dog’s viciousness and the defendant kept the dog in a

negligent manner.

{¶28} Further, in the Beckett case, the Supreme Court cited the Hayes and

McIntosh cases. In Hayes, the Ohio Supreme Court held that when it is shown that the

animal was kept by the defendant after knowledge of its dangerous character has been

acquired and an injury followed, there is prima facie evidence of negligence. 62 Ohio St.

161, 56 N.E. 879 (1900). Further, the “gist of such an action * * * is the negligent failure

to properly restrain the animal and to keep him so safely that he may not injure anyone

who is lawfully at the place.” Id. In McIntosh, the court held that the plaintiff has the

“burden of proving that defendant had negligently kept the dog after receiving knowledge Stark County, Case No. 2023CA00117 10

of its vicious nature,” and “the owner or harborer who knows of its vicious nature and

negligently keeps it, may have assessed against him punitive damages.” 81 Ohio App.

351, 77 N.E.2d 260 (1st Dist. Hamilton 1947). The Court stated the liability of the

defendant in the case depended upon proof of negligence in the defendant keeping the

dog after acquiring knowledge of its vicious character. Id. These cases demonstrate the

focus is on whether the defendant, in this case appellee, negligently kept the dog after

acquiring knowledge of its dangerous nature.

{¶29} Caselaw from this Court, and other appellate districts, confirm that under

the common law theory, one of the four elements the plaintiff must prove is that the

defendant was negligent in keeping the dog. Webb v. Prout, 5th Dist. Richland No. 2005

CA 0124, 2006-Ohio-4792; Flint v. Holbrook, 80 Ohio App.3d 21, 608 N.E.2d 809 (2nd

Dist. Montgomery 1992) (plaintiff must show “defendant was negligent in keeping the

dog”); Brown v. Terrell, 9th Dist. Summit No. 28845, 2018-Ohio-2503 (fourth element is

“defendant’s negligence in keeping the dog”); Redeye v. Belohlavek, 8th Dist. Cuyahoga

No. 87874, 2007-Ohio-85 (plaintiff suing for damages inflicted by a dog under a

negligence theory must show * * * the defendant was negligent in keeping the dog);

Schneider v. Kumpf, 2nd Dist. Montgomery No. 26955, 2016-Ohio-5161 (must show

defendant was negligent in keeping the dog); Ward v. Humble, 2nd Dist. Montgomery No.

29417, 2022-Ohio-3258 (under common law, a plaintiff suing for injuries inflicted by a dog

must show * * * defendant was negligent in keeping the dog); Dillon v. Ohio Department

of Rehabilitation and Correction, 10th Dist. Franklin No. 22AP-392, 2023-Ohio-942

(summary judgment affirmed because no evidence that dog was kept in a negligent

manner by defendant). Stark County, Case No. 2023CA00117 11

{¶30} Appellant suggests that this Court, in Darfus v. Clark, broadened the

common law liability to focus not on the negligence of the defendant, but on any “keeper.”

5th Dist. Fairfield No. 12-CA-9, 2013-Ohio-563. We disagree, and find Darfus

distinguishable from the instant case. First, in Darfus, liability was not at issue. Second,

the facts are not similar to the facts in this case, as the defendant in Darfus lived with the

dog and told the dog to “get him” when the plaintiff came to her property to inquire about

listing the property for sale. Finally, in Darfus, this Court cited both Hayes and McIntosh,

which demonstrate the focus is on whether the defendant, not a third party, negligently

kept the dog.

{¶31} Appellant’s argument regarding the fourth element of a common law

negligence claim in a dog bite case is more akin to R.C. 955.28, where ownership of a

dog that attacks another person resulting in injury may give rise to strict liability. However,

in a common law claim, the plaintiff must demonstrate something more, i.e., that the

owner knew of the dog’s viciousness and that the owner kept the dog in a negligent

manner.

{¶32} Under common law, the “gist of the action for injury by a dog known by its

owner to be vicious is generally said to be not negligent in the manner of keeping the dog,

but for keeping it at all.” Warner v. Wolfe, 176 Ohio St. 389, 199 N.E.2d 860 (1964). A

defendant “keeps” a dog by having the care, custody, or physical control over it. Thus,

the question is whether appellant put forth any evidence that appellee was negligent in

keeping Bella.

{¶33} Appellant was required to produce summary judgment evidence

demonstrating appellee kept Bella in a negligent manner after having knowledge of her Stark County, Case No. 2023CA00117 12

viciousness. Appellant himself was a “keeper” of Bella at the time of the injury, as he was

physically in control of the dog at the time of injury. Appellant was also a “harborer”

because he was in possession and control of the premises where the dog lived and

acquiesced in the dog being kept there.

{¶34} There is no evidence appellee kept the dog at all, not even in a temporary

capacity, for more than two years prior to the incident. Appellee testified that from the

summer of 2019 until after the incident, Bella was not in his home, and he had no physical

control over the dog during that time. Appellee further stated he did not care for or have

custody of Bella during those two years. Appellant testified he never saw appellee exert

any control over Bella and appellant stated no one else was taking care of the dog except

Regina. The testimony is undisputed that appellee had not exerted any temporary

physical care or control of Bella for over two years prior to the incident. Because appellant

set forth no summary judgment evidence demonstrating appellee kept the dog in a

negligent manner, the trial court did not commit error in granting appellee’s motion for

summary judgment and denying appellant’s motion for partial summary judgment.

{¶35} Based on the foregoing, appellant’s assignment of error is overruled. Stark County, Case No. 2023CA00117 13

{¶36} The August 25, 2023 judgment entry of the Stark County Court of Common

Pleas is affirmed.

By Gwin, J.,

Delaney, P.J., and

Baldwin, J., concur.