Lopiccolo v. Vidal

2012 Ohio 4048

• Court: Ohio Court of Appeals
• Decided: September 6, 2012
• Docket: 97150
• Status: Published

Opinion

[Cite as Lopiccolo v. Vidal, 2012-Ohio-4048.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97150

ROSE MARY LOPICCOLO PLAINTIFF-APPELLANT

vs.

CARLOS VIDAL, ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-726137

BEFORE: Belfance, J., Whitmore, P.J., and Moore, J.* (*Sitting by assignment: Judges of the Ninth District Court of Appeals)

RELEASED AND JOURNALIZED: September 6, 2012 [Cite as Lopiccolo v. Vidal, 2012-Ohio-4048.] ATTORNEY FOR APPELLANT

Samuel V. Butcher 12001 Prospect Road Suite A-1 Strongsville, OH 44149

ATTORNEY FOR APPELLEES

Stephen C. Merriam Law Office of Stephen J. Proe 7123 Pearl Road Suite 304 Middleburg Heights, OH 44130 [Cite as Lopiccolo v. Vidal, 2012-Ohio-4048.] EVE V. BELFANCE, J.:

{¶1} Rose Lopiccolo appeals the trial court’s award of summary

judgment to Radojoe and Lubinka Nikolic. For the reasons set forth below,

we affirm.

{¶2} Ms. Lopiccolo was watering the plants in her backyard when two

dogs attacked her. She fended off the dogs but not before the dogs had bitten

her. An investigation revealed that the two dogs allegedly belonged to the

son of Ms. Lopiccolo’s neighbor Tonya Vidal. Ms. Vidal rented the house next

door to Ms. Lopiccolo from the Nikolics with her fiancé Jeff Russell.

{¶3} Ms. Lopiccolo subsequently filed a complaint against the Nikolics,

Mr. Russell, Ms. Vidal, and her son, as well as against the girlfriend of Ms.

Vidal’s son and his girlfriend’s father. Following discovery, the Nikolics

moved for summary judgment, which the trial court granted on the basis that

the Nikolics were not the owners, keepers, or harborers of the dogs.

{¶4} Ms. Lopiccolo has appealed, raising a single assignment of error for

our review:

ASSIGNMENT OF ERROR

The trial court erred in finding plaintiff, Rose Mary Lopiccolo, unable to meet her burden for both strict liability under Ohio’s dog bite statute, O.R.C. 955.28(B), and her common law claim as to the liability of the defendant landlords, Radojoe Nikolic and Lubinka Nikolic, for injuries occurring as the result of a vicious dog bite attack, and in thus granting defendants’ motion for summary judgment. {¶5} Ms. Lopiccolo argues that there is a genuine issue whether the

Nikolics “knew or should have known” that the dogs that attacked her were

on their property and, therefore, there is a genuine issue of material fact

whether the Nikolics harbored the dogs. Thus, she argues, the award of

summary judgment was improper.

{¶6} A trial court’s award of summary judgment is reviewed de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996); Zemcik v. LaPine

Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585 (8th Dist.1998). In

Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998), the Ohio

Supreme Court set forth the appropriate test as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. [ ], 73 Ohio St.3d 679 [(1995)], paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt [ ], 75 Ohio St.3d 280, 292-293 [(1996)].

Id. at 369-370.

{¶7} Once the moving party satisfies its burden, the nonmoving party

“may not rest upon the mere allegations or denials of the party’s pleadings,

but the party’s response, by affidavit or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial.”

Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). Doubts

must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg,

65 Ohio St.3d 356, 358-359 (1992).

{¶8} Ms. Lopiccolo makes a very limited argument on appeal. She

argues that summary judgment was inappropriate because there was a

genuine issue of fact whether the Nikolics knew or should have known that

the dogs were being kept on the property, which, according to her, would

make them harborers of the dogs for the purposes of R.C. 955.28(B) and

common-law negligence. “[A] harborer is one who has possession and control

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

presence.” (Internal quotations and citations omitted.) Burrell v. Iwenofu,

8th Dist. No. 81230, 2003-Ohio-1158,

¶ 14. However, it is undisputed that the Nikolics leased the property to Ms.

Vidal and Mr. Russell, and “the determination as to whether a landlord is a

harborer does not depend upon whether the landlord knew about the

existence of the dog, but depends on whether the landlord permitted or

acquiesced in the tenant’s dog being kept in common areas or in an area

shared by both the landlord and the tenant.” Burgess v. Tackas, 125 Ohio

App.3d 294, 297 (8th Dist.1998). This is because “a lease transfers both possession and control of the leased premises to the tenant.” Id. at 297-298.

See also Burrell at ¶ 15.

{¶9} Nothing in the record could support the conclusion that the dogs

were kept in a common area of the property because Ms. Vidal and Mr.

Russell leased the entire single-family lot. Thus, regardless of whether the

Nikolics knew or should have known that the dogs were on the property, they

could not be harborers of the dog under Eighth District jurisprudence because

they did not have possession and control of the property. See Burgess at

297-298 (A trailer park entity is not liable under R.C. 955.28(B) or the

common-law, regardless of knowledge of the dog’s presence, unless the attack

happened in a common area.) See also Burrell at ¶ 15, 17. Accordingly,

based on Mr. Lopiccolo’s limited argument on appeal, her assignment of error

is overruled.

{¶10} Ms. Lopiccolo’s assignment of error is overruled. The judgment

of the Cuyahoga County Court of Common Pleas is affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this

judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

__________________________________ EVE V. BELFANCE, JUDGE

BETH WHITMORE, P.J., and CARLA MOORE, J., CONCUR