[Cite as Darfus v. Clark, 2013-Ohio-563.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
DAVID T. DARFUS, ET AL. : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiffs-Appellees : Hon. W. Scott Gwin, J. : Hon. William B. Hoffman, J. -vs- : : Case No. 12-CA-9 CAROLYN S. CLARK, ET AL. : : : Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of Common Pleas, Case No. 2011-CV-604
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 5, 2013
APPEARANCES:
For Appellant: For Appellees:
LUIGIA TENUTA MARK R. RIEGEL 6400 Riverside Dr. C100 144 E. Main St. Dublin, OH 43017 P.O. Box 667 Lancaster, OH 43130-0667
Delaney, P.J. {¶1} Defendant-Appellant Carolyn S. Clark appeals the March 14, 2012
judgment entry of the Fairfield County Court of Common Pleas, which rendered a
January 23, 2012 judgment entry granting damages to Plaintiffs-Appellees David and
Linda Darfus a final appealable order.
FACTS AND PROCEDURAL HISTORY
{¶2} On June 24, 2011, Plaintiffs-Appellees David and Linda Darfus filed a
complaint in the Fairfield County Court of Common Pleas against Defendant-Appellant
Carolyn S. Clark. The complaint alleged four claims against Clark: common law
negligence, loss of consortium, violation of the dog bite statute under R.C. 955.28(B),
and a request for punitive damages.
{¶3} David and Linda Darfus alleged in the complaint that David Darfus was a
visitor to Clark’s residence on October 15, 2010. Clark was the owner of two dogs
that Clark knew had vicious propensities because the dogs had bitten or threatened
other persons. On October 15, 2010, the Darfuses alleged Clark was negligent in her
failure to restrain the dogs or intentionally failed to restrain the dogs because Clark
either dropped the dogs’ leashes or intentionally dropped the leashes and ordered the
dogs to attack David Darfus. The dogs bit David Darfus causing injuries, some
permanent, such as contusions, puncture wounds, and abrasions to his left arm, left
wrist, right hand, left forearm, right thigh, and both legs and knees. Some of the
injuries required sutures. While David Darfus was on the ground, Clark grabbed David
Darfus by his right arm and forcibly pulled him up, causing the rotator cuff in his right
shoulder to tear. {¶4} David Darfus alleged in the complaint his medical bills were in excess of
$20,608.00 and his injuries would cause him to incur medical expenses in the future.
The Darfuses claimed compensatory damages in excess of $25,000.00.
{¶5} Linda Darfus stated in the complaint that due to the injuries suffered by
her husband, she was deprived of her husband’s services, society, companionship,
consortium, and assistance.
{¶6} Because Clark’s acts and omissions were allegedly reckless, willful and
wanton, and in total disregard to the safety of others, the Darfuses requested punitive
damages in excess of $25,000. The Darfuses also requested attorney’s fees.
{¶7} The complaint was served on Clark on July 8, 2011.
{¶8} On August 4, 2011, the Darfuses filed a Motion for Default Judgment on
their complaint against Clark. The trial court granted default judgment as to liability
only in favor of the Darfuses on August 11, 2011. The matter was set for an oral
hearing on damages pursuant to Civ.R. 55 on October 17, 2011.
{¶9} Clark appeared in the action through counsel on October 13, 2011.
Clark requested a continuance of the damages hearing. The trial court granted the
motion and rescheduled the oral hearing on damages to October 31, 2011.
{¶10} Clark filed a motion to vacate summary judgment on October 25, 2011.
The trial court considered the motion to be a motion to vacate the default judgment
pursuant to Civ.R. 60(B). Because the default judgment was as to liability only and
the issue of damages was still pending before the trial court, the trial court denied
Clark’s motion on November 16, 2011 because the default judgment was not a final
order. On November 7, 2011, Clark filed a pro se letter with the trial court requesting time to permit her to obtain new counsel. The damages hearing was continued to
December 16, 2011 at 9:00 a.m.
{¶11} Clark obtained new counsel to represent her in the action. On December
15, 2011, her counsel filed a notice of limited appearance to represent Clark in the
action. Clark also filed three motions on December 15, 2011: a motion for leave to
plead, defend, claim, and otherwise respond; a motion to discharge/withdraw her
previous counsel of record; a motion for stay of damages hearing, for leave to respond
to the Darfuses’ submission of damages and for mediation/settlement or status
conference.
{¶12} The damages hearing proceeded on December 16, 2011. Clark and her
counsel did not appear for the damages hearing. Prior to starting the damages
hearing, the trial court went on the record to state the trial court determined the
motions filed by Clark on December 15, 2011 were filed at 3:25 p.m. and the trial court
did not receive the motions until just prior to the damages hearing on December 16,
2011. (T. 8.) Before starting the damages hearing, the trial court, in the presence of
opposing counsel, contacted counsel for Clark by telephone. The trial court stated in
the record that Clark believed the damages hearing was a non-oral hearing. (T. 10-
11.) The trial court orally denied Clark’s motions for leave to plead and to stay the
damages hearing and the trial court proceeded with the damages hearing. (T. 12.)
David and Linda Darfus testified at the hearing.
{¶13} On January 23, 2012, the trial court issued its judgment entry as to
damages. The trial court noted the communications with Clark’s counsel in the
judgment entry. The judgment entry journalized the denial of Clark’s motions for leave to plead and to stay the damages hearing. The trial court awarded damages as
follows: (1) compensatory damages in the amount of $150,000 to David Darfus; (2)
compensatory damages for loss of consortium in the amount of $15,000 for Linda
Darfus; (3) punitive damages in the amount of $100,000 for David Darfus; (4)
attorney’s fees in the amount of $13,753.04 for David and Linda Darfus; and (5) post-
judgment interest and court costs against Clark.
{¶14} On March 14, 2012, the trial court amended the January 23, 2012
judgment entry by agreement of the parties to include Civ.R. 54(B) language. The
judgment entry was amended to state it was a nunc pro tunc order and included the
language, “there is no just reason for delay.”
{¶15} It is from this judgment Clark now appeals.
ASSIGNMENTS OF ERROR
{¶16} Clark raises nine Assignments of Error:
{¶17} “I. THE TRIAL COURT ERRED BY FAILING ITS RESPONSIBILITY TO
PROVIDE A PLAIN, DISTINCT, UNAMBIGUOUS STATEMENT OF THE LAW
APPLICABLE TO EVIDENCE PRESENTED FOR REMEDY IN A DOG BITE CLAIM,
RENDERING ITS JUDGMENT ARBITRARY UNDER BECKETT V. WARREN, 124
OHIO ST.3D 256. (JUDGMENT ENTRY, JANUARY 23, 2012.)
{¶18} “II. THE TRIAL COURT ERRED BY AWARDING PUNITIVE DAMAGES
AS A STATUTORY REMEDY FOR A DOG BITE INJURY. (JUDGMENT ENTRY,
JANUARY 23, 2012.) {¶19} “III. THE TRIAL COURT ERRED BY AWARDING ATTORNEYS FEES
AS A STATUTORY REMEDY FOR A DOG BITE INJURY. (JUDGMENT ENTRY,
JANUARY 23, 2012.)
{¶20} “IV. THE TRIAL COURT ERRED BY AWARDING LOSS OF
CONSORTIUM DAMAGES AS A STATUTORY REMEDY FOR A DOG BITE INJURY.
(JUDGMENT ENTRY, JANUARY 23, 2012.)
{¶21} “V. THE TRIAL COURT ERRED ARBITRARILY, PREJUDICIALLY AND
UNCONSCIONABLY BY ITS EXCESSIVE, UNSUBSTANTIATED COMPENSATORY
DAMAGES AWARD. (JUDGMENT ENTRY, JANUARY 23, 2012.)
{¶22} “VI. THE TRIAL COURT ERRED, PREJUDICIALLY, BY FAILING TO
DETERMINE IF APPELLEE WERE [SIC] OWED A HEIGHTENED DUTY OF CARE
AS A ‘VISITOR’ AND NOT AS AN INVITEE UPON LAND. (JUDGMENT ENTRY,
{¶23} “VII. THE TRIAL COURT ERRED, PREJUDICIALLY, BY A BROAD AND
UNCONSTITUTIONAL APPLICATION OF REVISED CODE §955.28 AS AN
ABSOLUTE LIABILITY STATUTE. (JUDGMENT ENTRY, JANUARY 23, 2012.)
{¶24} “VIII. THE TRIAL COURT ERRED, PREJUDICIALLY, BY AN
UNREASONED DENIAL OF APPELLANT’S MINIMAL BUT FUNDAMENTAL DUE
PROCESS REQUESTS FOR ACCESS TO COUNSEL, TIME AND OPPORTUNITY
TO BE HEARD. (JUDGMENT ENTRY, JANUARY 23, 2012.)
{¶25} “IX. THE TRIAL COURT ERRED BY FAILING TO CONDUCT A
DETERMINATIVE DAMAGES HEARING ACCORDING TO THE BARE NOTICE AND PROCESS REQUIREMENTS STATED PLAINLY AT OHIO CIVIL RULE 55(A).
(JUDGMENT ENTRY, JANUARY 23, 2012.)”
ANALYSIS
I.
{¶26} Clark argues in her first Assignment of Error the trial court failed to
include a statement of the law and facts in rendering its determination of damages in
the January 23, 2012 judgment entry. We disagree.
{¶27} The complaint alleged common law negligence based on the dog bite
wounds and the injury to David Darfus’s shoulder, a violation of the dog bite statute
under R.C. 955.28(B), and punitive damages. Clark did not timely respond to the
complaint and the Darfuses moved for default judgment. The trial court granted
default judgment as to liability only on August 11, 2011. The trial court then set the
matter for an evidentiary hearing to determine damages. The damages hearing was
held on December 16, 2011 and the trial court issued its judgment on January 23,
2012.
{¶28} In its decision on damages, the trial court did not make specific findings
as to the law and evidence. Rather, the trial court stated in its judgment it had
considered all of the pleadings and evidence presented at the damages hearing to
make its decision. The trial court then listed its calculation of damages: $150,000 in
compensatory damages to David Darfus, $15,000 in compensatory damages to Linda
Darfus, $100,000 in punitive damages to David Darfus, and $13,753.04 in attorney’s
fees to the Darfuses. {¶29} Clark argues the trial court’s judgment entry was incorrect because it did
not provide a plain statement of the law as to the different claims presented by the
Darfuses and further did not specify the remedies applicable and awarded for those
claims. Clark states the claims presented by the Darfuses as to the injuries sustained
as a result of the dog bites utilize different elements and provide different remedies. It
is Clark’s position the trial court neglected to specify the evidence it used to determine
the remedies.
{¶30} In Kovacks v. Lewis, 5th Dist. No. 2010 AP 01 0001, 2010-Ohio-3230,
this Court analyzed the law applicable to claims for injuries resulting from a dog bite.
There are two bases for recovery in Ohio for injuries sustained as a result of a dog
bite: common law and statutory. “At common law, the keeper of a vicious dog could
not be liable for personal injury caused by the dog unless the person [keeper] knew of
the dog's ‘vicious propensities.’” Bora v. Kerchelich, 2 Ohio St.3d 146, 147, 443
N.E.2d 509 (1983), quoting Hayes v. Smith, 62 Ohio St. 161, 56 N.E. 879 (1900),
paragraph one of the syllabus. Thus, in a common law action for bodily injuries
caused by a dog, a plaintiff must show that (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.
Hayes at paragraph one of the syllabus. In a common law action for bodily injuries
caused by a dog, as in any other common law tort action, punitive damages may be
awarded. McIntosh v. Doddy, 81 Ohio App. 351, 359, 77 N.E.2d 260 (1st Dist.1947).
{¶31} The statutory cause of action arises under R.C. 955.28, which provides: The owner, keeper, or harborer of a dog is liable in damages for
any injury, death, or loss to person or property that is caused by the dog,
unless the injury, death, or loss was caused to the person or property of
an individual who, at the time, was committing or attempting to commit a
trespass or other criminal offense on the property of the owner, keeper,
or harborer, or was committing or attempting to commit a criminal
offense against any person, or was teasing, tormenting, or abusing the
dog on the owner's, keeper's, or harborer's property.
{¶32} The statutory cause of action “eliminated the necessity of pleading and
proving the keeper's knowledge” of the dog's viciousness. Bora v. Kerchelich, 2 Ohio
St.3d 146, 147, 443 N.E.2d 509 (1983). Consequently, in an action for damages
under R.C. 955.28, the plaintiff must prove (1) ownership or keepership [or harborship]
of the dog, (2) that the dog's actions were the proximate cause of the injury, and (3)
the damages. Hirschauer v. Davis, 163 Ohio St. 105, 126 N.E.2d 337 (1955),
paragraph three of the syllabus. Thus, the defendant's knowledge of the dog's
viciousness and the defendant's negligence in keeping the dog are irrelevant in a
statutory action. Beckett v. Warren, 124 Ohio St.3d 256, 258, 2010-Ohio-4, 921
N.E.2d 624.
{¶33} Clark argues the trial court’s judgment entry failed to specify the
damages it awarded for the differing claims in the complaint.
{¶34} The Ohio Supreme Court held that a plaintiff may, in the same case,
pursue both statutory and common law negligence claims for a dog bite injury.
Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 22. The Supreme Court clarified that the common law remedy provided a potential additional
remedy – punitive damages – if the elements of knowledge or prior viciousness and
negligence are proven. Id. at ¶ 17. The Darfuses were entitled to seek judgment on
both claims for common law negligence and under the statute.
{¶35} As to the damages award, the trial court was not required to specify its
findings. This matter was before the trial court pursuant to Civ.R. 55. The Twelfth
District Court of Appeals held that a trial court is not required to support its damages
award after default judgment with findings. Henry v. Richardson, 12th Dist. Nos.
CA2010-05-110, CA2010-05-127, 2011-Ohio-2098, ¶ 9. Civ.R. 52 states, “[f]indings of
fact and conclusions of law required by this rule and by Rule 41(B)(2) are unnecessary
upon all other motions including those pursuant to Rule 12, Rule 55 and Rule 56.”
“Civ.R. 52 does not apply to proceedings on motion for default judgment under Civ.R.
55.” Henry, at ¶ 9.
{¶36} As a matter of procedure, the trial court was not required to provide
specific findings to support its damages award. Clark’s first Assignment of Error is
overruled.
II.
{¶37} Clark argues in her second Assignment of Error the trial court erred in
awarding punitive damages as a statutory remedy for a dog bite injury. In the January
23, 2012 judgment entry, the trial court awarded David Darfus punitive damages in the
amount of $100,000. In her Assignment of Error, Clark does not argue punitive
damages award were not warranted under the evidence presented at the damages
hearing. {¶38} Clark is correct when she states that punitive damages are not available
as a remedy in a claim for an injury caused by a dog bite brought under R.C. 955.28.
Under R.C. 955.28, a plaintiff may recover compensatory damages, but not punitive
damages. Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶
11, 21. Under the common law cause of action, the plaintiff may be awarded
compensatory and punitive damages. Id. at ¶ 7.
{¶39} In this case, the complaint alleged a claim for injury caused by the dog
bites under both a theory of common law negligence and a violation of R.C. 955.28.
David Darfus also alleged negligence for the injury suffered to his shoulder. As stated
in the discussion of the first Assignment of Error, the Ohio Supreme Court held that a
plaintiff may, in the same case, pursue both statutory and common law negligence
claims for a dog bite injury. Beckett, supra. In a common law dog bite action, the
plaintiff must prove (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. 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) the damages.
Beckett, supra. The Ohio Supreme Court held the common law elements of a dog bite
action can coexist with the elements of a statutory dog bite action:
[W]e quote from the First District Court of Appeals' analysis in
McIntosh v. Doddy (1947), 81 Ohio App. 351, 356–357, 37 O.O. 203, 77
N.E.2d 260: “[T]he common-law action [for injury by a dog] includes all
the elements of the statutory action and in addition the elements of scienter and negligence. * * * [W]here a petition contains all the
elements of a common-law action but the proof covers the statutory
elements only, * * * the court would not dismiss the plaintiff, but would
award to him the relief to which the proof entitled him, that is,
compensation for the injury received. That would be the relief to which
he would be entitled on the cause of action pleaded, shorn of the
allegations of scienter and negligence, which he had failed to prove.
And those allegations would be treated as surplusage.
The McIntosh court concluded that the jury had found against the
defendants on the issue of negligently keeping the dog and in so finding,
the jury had found that the defendant had harbored the dog. The court
held that “[t]he fact that it also found that the dog was vicious and that
the harboring was negligent and occurred after she had knowledge of its
viciousness, certainly is not prejudicial to the defendant.” Id. at 359, 37
O.O. 203, 77 N.E.2d 260.
Beckett at ¶ 19-20.
{¶40} The trial court in the present case granted the Darfuses default judgment
on their claims for common law negligence and a violation of R.C. 955.28. In its
decision on damages, the trial court awarded David Darfus compensatory damages
and punitive damages. The judgment entry on damages did not specify under which
claim the trial court awarded damages, nor was it required to make specific findings as
we held in the first Assignment of Error. {¶41} “In a common law action for bodily injuries caused by a dog, as in any
other common-law tort action, punitive damages may be awarded.” Beckett, at ¶ 7
citing McIntosh v. Doddy, 81 Ohio App. 351, 359, 77 N.E.2d 260 (1st Dist.1947). The
Darfuses were entitled to claim compensatory damages under both their common law
and statutory claims; the Darfuses were only entitled to punitive damages under their
common law action. Because the Darfuses permissibly brought both causes of action
in the same complaint and were granted default judgment on both causes of action,
we find the trial court could not grant double compensatory damages under the
simultaneous theories of recovery but could grant punitive damages under the
common law negligence cause of action. In this action, we do not infer the trial court
awarded punitive damages based on the statutory cause of action because the
Darfuses also had claims under a common law theory of negligence.
{¶42} Clark’s second Assignment of Error is overruled.
III.
{¶43} Clark contends in her third Assignment of Error the trial court erred in
awarding attorney’s fees for a dog bite injury claim pursued under R.C. 955.28. The
trial court awarded David and Linda Darfus attorney’s fees in the amount of
$13,753.04.
{¶44} As we have stated in our analysis of the first and second Assignments of
Error, the plaintiffs in this case brought an action for recovery under a statutory cause
of action and a common law cause of action. The trial court granted the plaintiffs
default judgment on both theories of recovery. After the hearing on damages, the trial court awarded the Darfuses compensatory damages, punitive damages, and
attorney’s fees.
{¶45} Clark is correct when she states that a plaintiff cannot recover attorney’s
fees in a dog bite action under R.C. 955.28. There is no statutory authorization for the
recovery of attorney’s fees in R.C. 955.28.
{¶46} In this case, however, the Darfuses were granted default judgment on
both their claims for common law negligence and a statutory violation of R.C. 955.28.
The trial court granted David Darfus compensatory damages on those claims and then
awarded punitive damages under the common law negligence claim.
{¶47} Attorney fees may be awarded as an element of compensatory
damages where the jury finds that punitive damages are warranted. Zoppo v.
Homestead Ins. Co., 71 Ohio St.3d 552, 557, 644 N.E.2d 397 (1994). In this case
because punitive damages were awarded under the common law negligence theory of
recovery, the trial court did not err in granting attorney’s fees pursuant to the award of
punitive damages.
{¶48} Clark’s third Assignment of Error is overruled.
IV.
{¶49} In her fourth Assignment of Error, Clark argues the trial court erred in
awarding Linda Darfus damages for loss of consortium because loss of consortium
damages are not available as a remedy for a violation of R.C. 955.28.
{¶50} In order to prove a loss of consortium claim, the plaintiffs first must
establish the underlying negligence action. Although a separate cause of action, a
consortium claim is a derivative claim -- it can be maintained only if the primary negligence action is proven. Bowen v. Kil–Kare, Inc., 63 Ohio St.3d 84, 92–93, 585
N.E.2d 384 (1992). Once negligence is shown, the complaining spouse must show
damages proximately caused by the negligent act, much as the primary plaintiff must
prove damages. Id. “‘Loss of spousal consortium is generally defined as a deprivation
of society, services, sexual relations, and conjugal affection, which includes
companionship, comfort, love and solace.’” Id. at 92, 585 N.E.2d 384, quoting
Clouston v. Remlinger Oldsmobile Cadillac, Inc., 22 Ohio St.2d 65, 72, 258 N.E.2d
230 (1970).
{¶51} In this case, David Darfus alleged both a negligence action and a
statutory action based on the dog bite. The negligence action further alleged injury to
David Darfus’s shoulder due to the actions of Clark. The loss of consortium action
and compensatory award were properly based on the grant of default judgment on the
primary claim for the common law negligence.
{¶52} Clark’s fourth Assignment of Error is overruled.
V.
{¶53} Clark argues in her fifth Assignment of Error the trial court’s
compensatory damages award to David Darfus was arbitrary and unconscionable.
The trial court awarded David Darfus $150,000 in compensatory damages.
{¶54} “Even though a party defaults and admits the allegations of the complaint
or stipulates to liability, a plaintiff must still prove his or her damages.” Henry v.
Richardson, 193 Ohio App.3d 375, 2011-Ohio-2098, 951 N.E.2d 1123, ¶ 8 (12th Dist.).
A reviewing court will not reverse a trial court’s decision regarding its determination of
damages absent an abuse of discretion. Hicks v. Extended Family Concepts, 5th Dist. Nos. 2010CA00159, 2010CA00183, 2011-Ohio-3227, ¶ 52 citing Kaufman v. Byers,
159 Ohio App.3d 238, 2004-Ohio-6346, 823 N.E.2d 520, ¶ 37 (11th Dist.). In order to
find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 450 N.E.2d 1140 (1983).
{¶55} Compensatory damages in a personal injury action include
compensation for actual medical expenses, future medical expenses, past and future
pain and suffering, disability, disfigurement, loss of enjoyment of life, and special
damages. Fantozzi v. Sandusky Cement Products Col., 64 Ohio St.3d 601, 597
N.E.2d 474 (1992). Recovery for permanent injuries or for a lasting impairment to
health are likewise proper elements of compensatory damages. Farley v. Ohio
Department of Rehabilitation and Correction, 128 Ohio App.3d 137, 713 N.E.2d 1142
(10th Dist.1998). Compensatory damages are recoverable under a common law
negligence action or under the statutory dog bite action.
{¶56} Clark argues an award of $150,000 for compensatory damages was
excessive under the law of Beckett v. Warren, 124 Ohio St.3d 256, 921 N.E.2d 624
(2010). In that case, the Ohio Supreme Court analyzed whether a plaintiff could
pursue both a common law negligence cause of action and a statutory claim for
injuries caused by a dog bite. David Darfus has claimed he is entitled to damages for
the injuries caused by the dog bites under a common law negligence theory and a
statutory claim. In the complaint, however, David Darfus also claims he suffered a
permanent shoulder injury due to Clark’s negligent actions on the date of the incident. {¶57} Upon our review of the record, we find the trial court did not abuse its
discretion in determining David Darfus was entitled to compensatory damages in the
amount of $150,000. At the damages hearing, David Darfus testified to the events
that caused his injuries and the injuries he suffered on October 15, 2010. David
Darfus is a 62-year-old real estate agent and through a prior real estate transaction,
he became acquainted with Clark’s parents. David Darfus also knew Clark through his
brother. On October 15, 2010, David Darfus spontaneously visited Clark’s property
with the intention of asking Clark about the well-being of her parents. He also wanted
to ask about her interest in listing some of her property for sale. Darfus drove his car
down Clark’s driveway and saw a “no trespassing” sign. He parked his car when he
reached Clark’s home, walked up to the house, and knocked on the door. He received
no answer at the door, so he left his card and turned to leave. As he stepped off the
porch, he heard a dog bark or growl. He turned towards the sound and saw Clark
standing with two dogs on a leash. The dogs appeared to be Rottweilers to Darfus.
Darfus greeted Clark, but Clark stated she did not know him and told him to leave her
property. Darfus says she immediately released the dogs and said, “get him.” The
dogs knocked Darfus to the ground and bit his arms and legs. Darfus yelled to Clark
to call the dogs off him. Clark told the dogs to release and she grabbed the dogs by
the collars. The dogs released Darfus and Clark put them in her car.
{¶58} Darfus had bite wounds on both knees, his right thigh, and his left
forearm. He called 9-1-1 on his cell phone. Darfus was on the ground, on his hands
and knees. Clark grabbed under his right elbow and jerked him up off the ground,
injuring Darfus’s right shoulder. The police reported to Clark’s property but Clark drove Darfus to the emergency room where his wife met him. When his wife saw his
wounds, she fainted. David Darfus required sutures for some of the dog bite wounds
because of the extent of the wounds. His wife cleaned and redressed the wounds
every day. He has permanent scarring from the dog bite wounds.
{¶59} David Darfus had shoulder surgery on his right shoulder ten years ago.
When Clark pulled Darfus from the ground, tendons were ripped in his shoulder. He
required a second shoulder surgery after the October 15, 2010 injury. He has
permanent scarring to his shoulder blade area where the rotator cuff used to be and
tendons were torn and could not be repaired. He has limited movement in his
shoulder that allows him lower arm movement to play golf or bowl, but he has
difficulties raising his hand over his head.
{¶60} After the October 15, 2010 incident, David Darfus’s doctor diagnosed
Darfus with post-traumatic stress. David Darfus enjoys bowling and golfing, but had to
gradually resume those activities because of pain. He no longer enjoys riding bicycles
with his children and grandchildren because of fear of being chased by a dog.
{¶61} At the damages hearing, the Darfuses introduced medical bills showing
past medical bills in the amount of $20,608.00. The Darfuses estimated future
medical expenses in the amount of $24,000.00.
{¶62} Based on the evidence presented at the damages hearing, the trial court
awarded David Darfus $150,000 in compensatory damages. Upon the record, we find
the trial court did not abuse its discretion in determining the amount of damages.
{¶63} Clark’s fifth Assignment of Error is overruled. VI.
{¶64} Clark contends in her sixth Assignment of Error the trial court erred in
failing to determine whether David Darfus was owed a heightened duty of care as a
“visitor” and not as an invitee upon the land.
{¶65} A trial court's decision to grant or deny a motion for default judgment is
reviewed for an abuse of discretion. Queen v. Hanna, 4th Dist. No. 11CA3447, 2012-
Ohio-6291, ¶ 20 citing Dye v. Smith, 189 Ohio App.3d 116, 2010-Ohio-3539, 937
N.E.2d 628, ¶ 7 (4th Dist.). In order to find an abuse of discretion, we must determine
the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶66} Under Civ.R. 55(A), ‘[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend as provided by
these rules, the party entitled to a judgment by default shall apply in writing or orally to
the court therefor; * * *. * * * If, in order to enable the court to enter judgment or to
carry it into effect, it is necessary to take an account or to determine the amount of
damages or to establish the truth of any averment by evidence or to make an
investigation of any other matter, the court may conduct such hearings or order such
references as it deems necessary and proper and shall when applicable accord a right
of trial by jury to the parties.” It is within the discretion of the trial court to determine
whether further evidence is needed to support the plaintiff’s claim against the
defaulting defendant. See Buckeye Supply Co. v. Northeast Drilling Co., 24 Ohio
App.3d 134, 136, 493 N.E.2d 964 (9th Dist.1985). {¶67} In the complaint, David Darfus alleged he was a visitor of Clark’s
residence on October 15, 2010. Clark argues the trial court should have considered
whether David Darfus was a licensee, invitee, or trespasser before granting default
judgment on the Darfuses’ complaint on the claim of negligence. Clark states the
status of David Darfus when he entered Clark’s property determines the legal duty
Clark owed to David Darfus as to the maintenance of the premises.
{¶68} The legal duty that landowners owe a person who enters their land
depends upon the status of the entrant, i.e., trespasser, licensee, or invitee. Mota v.
Gruszczynski, 197 Ohio App.3d 750, 2012-Ohio-275, 968 N.E.2d 631 (8th Dist.), ¶ 21
citing Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315,
662 N.E.2d 287 (1996). “Invitees are persons who rightfully come upon the premises
of another by invitation, express or implied, for some purpose which is beneficial to the
owner.” Id. In contrast, a licensee is a person who enters another's property “by
permission or acquiescence, for his own pleasure or benefit, and not by invitation.”
Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986).
{¶69} Assuming David Darfus was a licensee, Clark owed David Darfus the
same duty owed to a trespasser: “to refrain from willful, wanton or reckless conduct
[that] is likely to injure him.” Mota, supra citing Gladon, 75 Ohio St.3d at 317, 662
N.E.2d 287, citing Soles v. Ohio Edison Co., 144 Ohio St. 373, 59 N.E.2d 138 (1945),
paragraph one of the syllabus. The complaint in this case alleged that Clark was
holding the dogs’ leashes when she encountered David Darfus on her property. She
either then negligently dropped the dogs’ leashes or she intentionally dropped the
leashes and commanded the dogs to “get him.” {¶70} Further under R.C. 955.28(B), Clark has a statutory defense to strict
liability only if the plaintiff was criminally trespassing on the property. The statute
states:
The owner, keeper, or harborer of a dog is liable in damages for
any injury, death, or loss to person or property that is caused by the dog,
unless the injury, death, or loss was caused to the person or property of
an individual who, at the time, was committing or attempting to commit
criminal trespass or another criminal offense other than a minor
misdemeanor on the property of the owner, keeper, or harborer, or was
committing or attempting to commit a criminal offense other than a minor
misdemeanor against any person, or was teasing, tormenting, or abusing
the dog on the owner's, keeper's, or harborer's property. Additionally, the
owner, keeper, or harborer of a dog is liable in damages for any injury,
death, or loss to person or property that is caused by the dog if the
injury, death, or loss was caused to the person or property of an
individual who, at the time of the injury, death, or loss, was on the
property of the owner, keeper, or harborer solely for the purpose of
engaging in door-to-door sales or other solicitations regardless of
whether the individual was in compliance with any requirement to obtain
a permit or license to engage in door-to-door sales or other solicitations
established by the political subdivision in which the property of the
owner, keeper, or harborer is located, provided that the person was not committing a criminal offense other than a minor misdemeanor or was
not teasing, tormenting, or abusing the dog.
{¶71} Trespass is a valid defense to liability, which Clark failed to raise by
answering the complaint. We find no abuse of discretion by the trial court to grant
default judgment on the complaint.
{¶72} Clark’s sixth Assignment of Error is overruled.
VII.
{¶73} Clark contends in her seventh Assignment of Error that the trial court
unconstitutionally applied R.C. 955.28 to Clark.
{¶74} Clark was served with the complaint and had a meaningful opportunity to
respond to the complaint. Clark does not provide this Court any direct authority to
support her position that a trial court is without power to grant default judgment on a
claim under R.C. 955.28.
{¶75} Clark’s seventh Assignment of Error is overruled.
VIII.& IX.
{¶76} We consider Clark’s eighth and ninth Assignments of Error together
because they are interrelated. Clark argues the trial court violated her due process
protections by failing to give her meaningful opportunity to participate in the
proceedings. Specifically, Clark argues the trial court improperly conducted the
damages hearing. We disagree.
{¶77} The trial court granted default judgment on liability but set the matter for
a damages hearing under Civ.R. 55(A). The damages hearing was originally set on
October 17, 2011, but was twice continued by the trial court pursuant to Clark’s requests. The damages hearing had been designated in the trial court’s orders as an
oral hearing on damages.
{¶78} We find the trial court was within its discretion to deny Clark’s December
15, 2011 motion to stay the damages hearing set for December 16, 2011.
{¶79} Clark’s eighth and ninth Assignments of Error are overruled.
CONCLUSION
{¶80} The nine Assignments of Error of Defendant-Appellant Carolyn S. Clark
are overruled.
{¶81} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
PAD:kgb IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
: DAVID T. DARFUS, et al. : : Plaintiffs-Appellees : JUDGMENT ENTRY : : -vs- : : Case No. 12-CA-9 CAROLYN S. CLARK, et al. : : Defendants-Appellants : :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Fairfield County Court of Common Pleas is affirmed. Costs assessed to Appellant
Carolyn S. Clark.