Dilgard v. McKinniss

2024 Ohio 1106

• Court: Ohio Court of Appeals
• Decided: March 25, 2024
• Docket: 5-23-36
• Status: Published

Opinion

[Cite as Dilgard v. McKinniss, 2024-Ohio-1106.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

PAMELA DILGARD, ET AL., CASE NO. 5-23-36 PLAINTIFFS-APPELLANTS,

v.

COREY MCKINNISS, ET AL., OPINION

DEFENDANTS-APPELLEES.

Appeal from Hancock County Common Pleas Court Trial Court No. 2021 CV 00139

Judgment Affirmed

Date of Decision: March 25, 2024

APPEARANCES:

Andrea R. Young for Appellants

Dalton J. Smith for Appellees Case No. 5-23-36

WILLAMOWSKI, P.J.

{¶1} Plaintiffs-appellants Pamela L. Dilgard (“Pamela”) and Steven W.

Dilgard (“Steven”) (collectively “the Dilgards”) appeal the judgment of the

Hancock County Court of Common Pleas, arguing that the trial court erred in

granting summary judgment in favor of defendants-appellees Arnold C. McKinniss

(“Arnold”) and Bonnie J. McKinniss (“Bonnie”). For the reasons set forth below,

the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} The Dilgards are a married couple who live roughly one block away

from where Arnold’s grandson, Corey J. McKinniss (“Corey”), resides on Center

Street. Arnold and Bonnie own the house where Corey lives alone. The year after

he moved into this house, Corey got two white dogs named Gator and Kora in 2018.

{¶3} On January 18, 2021, Pamela took her dog on a walk. As she was

passing Corey’s house on the sidewalk, she saw a white dog come running towards

her from Corey’s backyard. Pamela testified that the white dog attacked her dog

and that she screamed in response.1 She tried to hit and kick the white dog away

from her dog. At this point, Corey opened his garage door where he was with Kora.

1 Corey indicated that Gator was the first dog to run towards Pamela.

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{¶4} Corey observed Kora go over to where Pamela was located. He then

crossed his driveway and attempted to separate the dogs. Corey sought to shield

Pamela’s dog while he called for another neighbor to help get Gator and Kora back

into the house. In this process, Pamela’s left thumb was bitten, and she was knocked

to ground.

{¶5} While the dogs were being separated, Pamela’s dog came out of its

harness. Upon getting loose, Pamela’s dog began to run to where the Dilgards lived.

Pamela then ran after her dog. After Pamela reached her house, Steven called 9-1-

1. Pamela then went to the hospital to get stiches for the laceration on her left thumb.

She then took her dog to a veterinarian for a regular checkup, but her dog did not

need any stiches as the result of the incident.

{¶6} On May 18, 2021, the Dilgards filed a complaint that named Corey,

Arnold, and Bonnie as defendants. On March 28, 2022, Arnold and Bonnie filed a

motion for summary judgment, arguing that they did not have substantial control of

the premises and could not, therefore, be held liable in this case. On August 2, 2022,

the trial court issued a decision that granted summary judgment in favor of Arnold

and Bonnie.

Assignment of Error

{¶7} The Dilgards filed their notice of appeal on August 25, 2023 pursuant

to a Civ.R. 54(B) certification of the decision granting summary judgment. On

appeal, the appellants raise the following assignment of error:

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The trial court erred to the prejudice of Pamela and Steven Dilgard in granting Summary Judgment in favor of Arnold and Bonnie McKinniss and holding that they did not have substantial control of the premises and therefore were not harborers of the dogs.

Standard of Review

{¶8} Appellate courts review an order granting summary judgment de novo.

James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock No. 5-16-20, 2016-

Ohio-7641, ¶ 5. Under Civ.R. 56, summary judgment is to be granted

only when it is clear ‘(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.’

Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46, 47

(1978). The party that moved for summary judgment bears the initial burden of

demonstrating that no genuine issue of material fact exists for trial and that it is,

therefore, entitled to judgment as a matter of law. Beair v. Management & Training

Corp., 3d Dist. Marion No. 9-21-07, 2021-Ohio-4110, ¶ 15.

{¶9} If the moving party carries its initial burden, the burden then shifts to

the non-moving party to demonstrate that a dispute over a genuine issue of material

fact exists for trial. Hall v. Kosei St. Marys Corporation, 2023-Ohio-2021, 218

N.E.3d 205, ¶ 5 (3d Dist.). To prevail, the non-moving party must do more than

make mere denials but must identify specific facts that establish its position. Durfor

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v. West Mansfield Conservation Club, 3d Dist. No. 8-21-26, 2022-Ohio-416, ¶ 13.

A motion for summary judgment must be granted with caution because it is a

procedural device that terminates the litigation. Williams v. ALPLA, Inc., 2017-

Ohio-4217, 92 N.E.3d 256, ¶ 6 (3d Dist.). “The court must thus construe all

evidence and resolve all doubts in favor of the non-moving party * * *.” Webster

v. Shaw, 2016-Ohio-1484, 63 N.E.3d 677, ¶ 8 (3d Dist.).

Legal Standard

{¶10} The Ohio Revised Code “imposes strict liability against particular

categories of people for injuries caused by a dog, subject to certain exceptions * *

*.” Purcell v. Stemen, 2023-Ohio-4086, --- N.E.3d ---, ¶ 11 (3d Dist.). R.C.

955.28(B) reads, in its relevant part, as follows:

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.

Thus, pursuant to R.C. 955.28(B), “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.” (Brackets sic.) Beckett v. Warren, 124

Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 11.

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{¶11} Further, “[a] plaintiff may, in the same case, pursue a claim for a dog

bite injury under both R.C. 955.28 and common-law negligence.” Beckett at

syllabus.

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.’

Vallejo v. Haynes, 2018-Ohio-4623, 124 N.E.3d 322, ¶ 14 (10th Dist.), quoting

Beckett at ¶ 7. Thus, a plaintiff can establish the first element of a statutory claim

or common law claim for a dog-bite by demonstrating that a defendant is a harborer

of the dog. Beckett at ¶ 7, 11.

{¶12} “An ‘owner’ is the person to whom the dog belongs.” Kehres v. Auck,

3d Dist. Crawford No. 3-06-02, 2006-Ohio-4839, ¶ 17. “A ‘keeper’ is the person

who has physical care or charge of the dog.” Id. “[A] ‘harborer’ is one who ‘has

possession and control of the premises where the dog lives, and silently acquiesces

to the dog’s presence.’” Id., quoting Flint v. Holbrook, 80 Ohio App.3d 21, 25, 608

N.E.2d 809 (2d Dist. 1992). Thus, “[t]o determine whether a person is a ‘harborer’

of a dog, ‘the focus shifts from possession and control over the dog to possession

and control of the premises where the dog lives.’” Vallejo, supra, at ¶ 15, quoting

Hilty v. Topaz, 10th Dist. Franklin No. 04AP-13, 2004-Ohio-4859, ¶ 8.

{¶13} “Typically, a landlord out of possession and control of the premises

where the dog lives is not a harborer of a tenant’s dog.” Williams v. Buchner, 2023-

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Ohio-1293, 217 N.E.3d 33, ¶ 13 (8th Dist.). “Absent a contrary agreement, a lease

agreement transfers both the possession and control of the premises to the tenant.”

Morris v. Cordell, 1st Dist. Hamilton No. C-150081, 2015-Ohio-4342, ¶ 11. “When

the property at issue consists of a single-family residence situated on a normal-sized

city lot, there is a presumption that the tenants possess and control the entire

property.” H.W. v. Young, 2020-Ohio-1834, 153 N.E.3d 807, ¶ 24 (8th Dist.),

quoting Brown v. Terrell, 2018-Ohio-2503, 114 N.E.3d 783, ¶ 13 (9th Dist.).

{¶14} Under Ohio law, “the mere fact that the landlord has control over

whether a dog is allowed to live on the premises with its owners is not sufficient to

transform a landlord into a harborer.” Williams at ¶ 13.

To hold otherwise ‘would be ignoring the necessary possession element to being a harborer and would be creating a fiction that a landlord retains day-to-day control over a dog despite not being present at or in possession of the premises on which the dog lives.’

Id., quoting Ward v. Humble, 2d Dist. Montgomery No. 29417, 2022-Ohio-3258, ¶

15. Similarly, “a landlord’s knowledge that the tenant is keeping a dog on the leased

premises, standing alone, does not support a finding that the landlord harbored the

dog * * *.” Coontz v. Hoffman, 10th Dist. Franklin No. 13AP-367, 2014-Ohio-274,

¶ 24.

{¶15} “A landlord is not deemed to be in possession and control of the

premises simply because she retains the right to inspect them.” Brown at ¶ 13.

Further,

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Courts have further stated that ‘routine and common acts conducted by a landlord, such as making repairs, paying taxes, insuring the structure, and the like, do not constitute the control necessary to establish liability.’ Morris at ¶ 14.

(Citation omitted.) Brown at ¶ 13. “Generally, ‘[t]o possess a property means to

use or occupy it.’” E.F. v. Seymour, 2018-Ohio-3946, 120 N.E.3d 459, ¶ 19 (10th

Dist.), quoting Parker v. Sutton, 72 Ohio App.3d 296, 298, 594 N.E.2d 659 (6th

Dist. 1991). “Furthermore, the hallmark of control is the ability to admit or exclude

others from the property.” E.F. at ¶ 19, quoting Engwert-Loyd v. Ramirez, 6th Dist.

No. L-06-1084, 2006-Ohio-5468, ¶ 11.

Legal Analysis

{¶16} The appellants argue that the trial court erred in concluding that the

appellees did not have possession and control of the premises where Corey lived

and could not, therefore, be considered harborers of Corey’s dogs. However, the

record establishes that Arnold and Corey had a landlord-tenant relationship. In this

case, Corey testified that he is a tenant living on a property owned by his

grandfather. While Corey did not regularly pay rent, he stated that an agreement

existed between him and Arnold under which he (Corey) mows the grass, shovels

the snow, and pays the utilities while he lives in the house. See Brown, supra, at ¶

12. Corey also testified that he conducted day-to-day maintenance and generally

paid for repairs on the property. See Ramsdell v. Ramsdell, 6th Dist. Lucas No. L-

12-1113, 2013-Ohio-409, ¶ 14; Morris, supra, at ¶ 14.

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{¶17} Further, the evidence in the record indicates that, as a tenant, Corey

had possession and control of the premises. Corey indicated that he lived alone at

the property. Arnold testified that he has never lived or even stayed overnight at the

Center Street property. Corey testified that Arnold and Bonnie did not impose any

restrictions on the property aside from the general expectation that he was to take

care of the premises. Corey also indicated that, except for having the ability to make

major changes to the property, he lives as though he is the owner of the house.

Bonnie testified that Corey does not have to ask them permission for any of his

activities on the Center Street property. Similarly, Arnold stated that Corey can

“basically do what he wants” with the house. (Arnold Depo. Tr. 12).

{¶18} Arnold further stated that he did not impose any restrictions against

having dogs on the property. Corey affirmed that he “notif[ied]” Arnold that he was

getting the dogs and that he did not ask his grandparents for permission to get the

dogs. (Corey Depo. Tr. 15, 97-98). He also affirmed that Bonnie objected to the

idea of him getting dogs and stated that Arnold “kind of” objected to this idea.

However, Corey indicated that he proceeded to get the dogs and stated that neither

Arnold nor Bonnie tried to stop him, even though they were not pleased about his

decision.

{¶19} Corey also testified that he decides who comes onto the property and

that his grandparents have no control over who enters the premises where he lives.

See Green, supra, at ¶ 48. See also Pangallo v. Adkins, 12th Dist. Clermont No.

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CA2014-02-019, 2014-Ohio-3082, ¶ 17; E.F., supra, at ¶ 19. He also testified that

does not ask his grandparents for permission before inviting others into the house.

In response to this testimony, the Dilgards argue that Corey did not have exclusive

possession and control of the premises because Bonnie and Arnold would visit him

at the Center Street house or would come to the property unannounced.

{¶20} Bonnie testified that, while she has been to the Center Street house,

she had not been inside the house for roughly one year before the incident. Arnold

testified that he would stop by the Center Street house about four times a month to

see “if he [Corey] was around” and to check on the condition of the property.

(Arnold Depo. Tr. 15). See Brown, supra, at ¶ 13 (“A landlord is not deemed to be

in possession and control of the premises simply because she retains the right to

inspect them.”); Green v. Zack, 5th Dist. Richland No. 2019 CA 0057, 2019-Ohio-

4944, ¶ 3, 48 (concluding that a landlord-father who visited his tenant-daughter’s

house weekly did not have possession or control of the property where the daughter

lived).

{¶21} Corey similarly testified that Arnold would often stop by to hang out

or examine the property. The depositions indicate that Arnold would, at times, be

at the Center Street house when Corey was not present. However, Corey explained,

“I am the oldest grandson and they [Bonnie and Arnold] played more of a parent

role in my life than my parents have.” (Corey Depo. Tr. 13). He stated that his

grandparents could come to the Center Street house. E.F., supra, at ¶ 30 (finding

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that a landlady-mother did not have possession and control of the premises where

she had the “ability to visit the home” of her tenant-daughter).

{¶22} Having examined the contents of the record, we conclude that the

visits from his grandparents are not inconsistent with Corey having possession and

control of the premises. The Dilgards have failed to establish that a genuine issue

of material fact exists for trial as to whether Arnold and Bonnie were harborers of

the dogs. Thus, we do not conclude that the trial court erred in granting summary

judgment in favor of the appellees. Accordingly, the sole assignment of error is

overruled.

Conclusion

{¶23} Having found no error prejudicial to the appellants in the particulars

assigned and argued, the judgment of the Hancock County Court of Common Pleas

is affirmed.

ZIMMERMAN and MILLER, J.J., concur.

/hls

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