Uhl v. McKoski

2014 Ohio 479

• Court: Ohio Court of Appeals
• Decided: February 12, 2014
• Docket: 27066
• Status: Published

Opinion

[Cite as Uhl v. McKoski, 2014-Ohio-479.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

VICKIE L. UHL C.A. No. 27066

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE JOHN MCKOSKI, et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV 2012 10 5886

DECISION AND JOURNAL ENTRY

Dated: February 12, 2014

BELFANCE, Judge.

{¶1} Appellant Vickie L. Uhl appeals the decision of the Summit County Court of

Common Pleas granting summary judgment in favor of Appellees John and Catherine McKoski

(“the McKoskis”). We affirm.

I.

{¶2} On November 20, 2010, Ms. Uhl was walking her dog on Narragansett Drive in

Akron, Ohio. As she was doing so, a dog approached her and proceeded to attack her.

Ultimately, the dog ran to the house located at 595 Narragansett Drive. Ms. Uhl suffered injuries

to her leg from the dog bite which required medical treatment. That day, immediately following

the attack, Ms. Uhl noticed a “[B]eware of [D]og” sign in the window of 595 Narragansett Drive.

Ms. Uhl later returned to the address and took pictures of the sign.

{¶3} After the incident, Ms. Uhl learned that the McKoskis were renting 595

Narragansett Drive to Jason and Eboni White (“the Whites”). Ms. Uhl also learned that 595 2

Narragansett Drive had not been registered as a rental unit with the City of Akron until after the

attack. Ms. Uhl brought suit against the Whites and the McKoskis for her injuries and medical

expenses, claiming that all four of them “owned, kept, harbored, and/or maintained the dog” at

595 Narragansett Drive.

{¶4} The Whites failed to appear, and the trial court entered a default judgment against

them in the amount of $50,000. The McKoskis moved for summary judgment, asserting that

they never lived at the premises, they never authorized anyone to have a dog at the premises, and

they did not know there was a dog at the premises. Ms. Uhl opposed the motion maintaining that

the McKoskis were keepers or harborers of the dog and that the presence of a “[B]eware of

[D]og” sign evidenced that they harbored the dog at the premises. Thereafter the McKoskis

moved to strike the assertion in Ms. Uhl’s affidavit that they “harbored” the dog on the basis that

the affidavit contained a legal conclusion as opposed to providing facts based upon actual

knowledge. The trial granted the motion to strike as well as the McKoskis’ motion for summary

judgment concluding in part that “there [wa]s no evidence to demonstrate that the McKoskis had

any knowledge that the dog existed[,] let alone that the dog was vicious.”

{¶5} Ms. Uhl has appealed, raising one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT AGAINST APPELLANT WHEN THE EVIDENCE OF THE “BEWARE OF DOG” SIGN LOCATED IN THE WINDOW OF THE PROPERTY AND “THE LANDLORD’S FAILURE TO REGISTER AS A RENTAL” [Sic] IS VIEWED IN A LIGHT MOST FAVORABLE TO THE NONMOVING PARTY BECAUSE THERE EXISTED GENUINE ISSUES OF MATERIAL FACT. 3

{¶6} In her sole assignment of error, Ms. Uhl argues that the trial court erred in

granting summary judgment in favor of the McKoskis because there were genuine issues of

material fact as to whether the McKoskis harbored the dog. Specifically, Ms. Uhl argues that the

fact that the McKoskis failed to register as landlords and the fact that the window contained a

“[B]eware of [D]og” sign, when viewed in a light most favorable to her, support the conclusion

that the McKoskis harbored the dog, thereby creating a genuine issue of material fact on that

issue. We disagree.

{¶7} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison Co.,

77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court, viewing the facts

in the case in the light most favorable to the non-moving party and resolving any doubt in favor

of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427, 2011-Ohio-1519, ¶ 8.

{¶8} Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

{¶9} To succeed on a summary judgment motion, the movant “bears the initial burden

of demonstrating that there are no genuine issues of material fact concerning an essential element

of the opponent’s case.” (Emphasis omitted.) Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).

If the movant satisfies this burden, the nonmoving party “‘must set forth specific facts showing

that there is a genuine issue for trial.”’ Id. at 293, quoting Civ.R. 56(E). 4

{¶10} Each of Ms. Uhl’s five counts in her complaint asserted that the McKoskis

“owned, kept, harbored, and/or maintained” the dog at issue.1 The McKoskis asserted in their

motion for summary judgment that there was no evidence that they owned, kept, or harbored the

dog and thus they were entitled to judgment as a matter of law. On appeal, Ms. Uhl only asserts

that the trial court erred in its determination that there was no evidence that the McKoskis

harbored the dog.

{¶11} “There are two bases for recovery in Ohio for injuries sustained as a result of a

dog bite: common-law and statutory.” Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, ¶ 7.

“[I]n 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.” Id. To prove a statutory cause of action pursuant to 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.” Id. at ¶ 11. “The statutory cause of action

eliminated the necessity of pleading and proving the keeper’s knowledge of the dog’s

viciousness.” (Internal quotations and citation omitted.) Id. “Acquiescence is essential to

harborship and requires some intent.” (Internal quotations and citation omitted.) Jones v.

Holmes, 12th Dist. Butler No. CA2012-07-133, 2013-Ohio-448, ¶ 12.

1 Ms. Uhl’s complaint asserts both common law negligence claims as well as a statutory claim pursuant to R.C. 955.28. Additionally, it appears Ms. Uhl asserts additional causes of action for negligence/negligence per se related to the dog bite for alleged violations of Akron City Ordinances. Even assuming such claims exist, those claims are also premised on the notion that the McKoskis owned, kept, harbored, or maintained the dog. Thus, because we agree with the trial court’s conclusion that there was no evidence that the McKoskis harbored the dog, Ms. Uhl could not succeed on these causes of action either. 5

{¶12} The McKoskis asserted in their respective affidavits that they had leased the

premises where the dog returned after the attack and had never lived there. The McKoskis

attached a copy of the lease to their motion which evidenced that the premises were leased to the

Whites at the time of the attack. The McKoskis further averred that they did not authorize the

Whites to have a dog and did not know that there was a dog at the premises. It was undisputed

that the lease provided that “[t]he Resident also agrees not to * * * have unauthorized pets or

animals of any kind in the Premises * * *.” The evidence presented by the McKoskis was not

rebutted. In particular, although Ms. Uhl contended that the McKoskis harbored the dog, it is

evident that they could not have harbored a dog without even knowing a dog existed. Jones at ¶

12 (Acquiescence requires some level of intent.). In response to summary judgment, Ms. Uhl

did not present evidence that created a material dispute of fact as to whether the McKoskis knew

about the dog. There was no evidence that the McKoskis had been at the premises after the

property was leased, and no evidence that they had seen or were aware of a “[B]eware of [D]og”

sign at the premises. In that regard, there was no evidence as to how long the sign had been

posted at the premises.

{¶13} Ms. Uhl nonetheless argues that there was evidence that the McKoskis harbored

the dog because it could be inferred that they were aware of the dog’s presence through the

“[B]eware of [D]og” sign in the window of 595 Narragansett Drive. The problem with Ms.

Uhl’s argument is that there is no evidence how long the sign was in place. There was no

testimony that it was present on the property prior to the date of the attack or that anyone else

saw the sign prior to the date of the attack. Further, in light of the McKoskis’ uncontradicted

affidavit which avers that they did not know there was a dog at the premises, and the fact that

there was no evidence the McKoskis ever visited the premises, one cannot infer from the limited 6

evidence pertaining to the “[B]eware of [D]og” sign that the McKoskis knew of the dog’s

existence much less acquiesced to the presence of the dog. See Maggard v. Pemberton, 178

Ohio App.3d 328, 2008-Ohio-4735, ¶ 9 (2d Dist.) (stating that, under a common law negligence

claim, a landlord out of possession could be “liable for injuries caused by the animal kept on the

leased premises by the tenant when the landlord has knowledge of the dangerous or vicious

animal but fails to abate the hazard with sufficient time to do so.”). Likewise, assuming that the

dog actually lived at the premises,2 there was no evidence indicating how long the dog had been

at the premises or evidence that other neighbors ever saw the dog at the premises prior to the

attack. Thus, based on what little evidence was presented for the trial court to consider, Ms. Uhl

failed to meet her corresponding Dresher burden to offer evidence demonstrating that there was

a dispute of material fact as to whether the McKoskis harbored the dog at issue.

{¶14} Ms. Uhl also argues that the fact that the McKoskis failed to register 595

Narragansett Drive as a rental property with the City of Akron would support the notion that the

McKoskis harbored the dog. However, Ms. Uhl has failed to provide any law to support her

argument. In particular, she has not explained how the fact that the McKoskis failed to register

the property serves as evidence to rebut the evidence that the McKoskis did not know about the

existence of a dog on the premises. See App.R. 16(A)(7). Moreover, she has not explained how

the fact that the McKoskis failed to register the property would support her claims. See id. In

light of Ms. Uhl’s failure to develop this argument or cite law that would support her position,

we see no merit in it and overrule it on that basis.

2 Ms. Uhl states in her affidavit that she saw the dog run back to 595 Narragansett Drive after it bit her. Bystanders and police then cornered the dog. 7

{¶15} In light of the foregoing, we cannot conclude that the trial court erred in

concluding there was no dispute of fact as to whether the McKoskis harbored the dog. Given

Ms. Uhl’s limited arguments on appeal, we cannot say that the trial court erred in granting

summary judgment in favor of the McKoskis. Ms. Uhl’s assignment of error is overruled.

III.

{¶16} For the reasons set forth above, we affirm the judgment of the Summit County

Court of Common Pleas.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT 8

MOORE, P. J. HENSAL, J. CONCUR.

APPEARANCES:

TONY DALAYANIS, Attorney at Law, for Appellant.

JAMES L. GLOWACKI and STEPHEN D. DOUCETTE, Attorneys at Law, for Appellees.

JASON WHITE and EBONI WHITE, pro se, Appellees.