Bora v. Kerchelich

443 N.E.2d 509, 2 Ohio St. 3d 146, 2 Ohio B. 692, 1983 Ohio LEXIS 635

• Court: Ohio Supreme Court
• Decided: January 5, 1983
• Docket: No. 82-17
• Status: Published

Opinions

Per Curiam.

At common law, the keeper of a vicious dog could not be liable for personal injury caused by the dog unless that person knew of the dog’s “vicious propensities.” Hayes v. Smith (1900), 62 Ohio St. 161, paragraph one of the syllabus. Later, however, the General Assembly enacted provisions which eliminated the necessity of pleading and proving the keeper’s knowledge. Kleybolte v. Buffon (1913), 89 Ohio St. 61, 64. The Kleybolte court, after examining the plaintiff’s petition, found that there was “no averment of scienter” and concluded that “[t]he right of action * * * must have been predicated upon the statute * * *.” Id.

Similarly, we agree with the court of appeals that appellee alleges liability based upon the contemporary version of the statute referred to in Kleybolte, supra. R.C. 955.28 provides in part: “The owner or keeper [of a dog] shall be liable for any damage .or injuries caused by a dog unless such damage or injury was to the body or property of a person who, at the time such damage or injuries were sustained, was committing a trespass on the property of the owner, or was teasing, tormenting, or abusing such dog on the owner’s property. ” (Emphasis added.) Appellee’s complaint does not allege that appellant knew of the dog’s viciousness but does evoke the language of the statute. (Compare the emphasized portions of R.C. 955.28 with those of the complaint, supra.) The same conclusion follows here, as in Kleybolte: the statute gives rise to the cause of action.

Therefore, R.C. 2305.07, the statute of limitations for “an action * * * upon a liability created by statute,” is controlling.

Appellant argues, however, that Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47 [44 O.O. 72], requires that we conclude that R.C. 2305.10 is the applicable statute of limitations in this case. We disagree.

In Andrianos, this court held that characterizing a fare-paying bus passenger’s claim for bodily injury as one for breach of an implied contract for safe passage did not change the inherent nature of the suit. Therefore, this court applied the statute of limitations for bodily injury rather than that for implied contract.

That same reasoning leads us to the result in this case. Appellee’s complaint suggests that R.C. 955.28 is the source of appellant’s alleged liability. Although appellee alleged injury, as required by R.C. 955.28, it is injury “earned by a dog” which is the crux of the claim. R.C. 2305.07, therefore, is the controlling provision.

Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

W. Brown, Sweeney, Locher, Holmes, C. Brown and Krupansky, JJ., concur. Celebrezze, C.J., dissents.