Volz v. Hudson

761 N.E.2d 711, 115 Ohio Misc. 2d 63, 2001 Ohio Misc. LEXIS 35
CourtClermont County Municipal Court
DecidedOctober 26, 2001
DocketNo. 2001CVE01511
StatusPublished
Cited by1 cases

This text of 761 N.E.2d 711 (Volz v. Hudson) is published on Counsel Stack Legal Research, covering Clermont County Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Volz v. Hudson, 761 N.E.2d 711, 115 Ohio Misc. 2d 63, 2001 Ohio Misc. LEXIS 35 (Ohio Super. Ct. 2001).

Opinion

Victor M. Haddad, Judge.

This cause came on for trial on August 3, 2001. The court, at the conclusion of the trial, took the case under advisement. The court now renders this written decision. The plaintiffs, Patricia and Thomas Volz, were represented by Marshall McCachran. The defendants, Jeff and Laura Hudson, appeared but were not represented by counsel.

Findings of Fact

The testimony at trial indicates that on October 5, 1999, plaintiff Patricia Volz, while riding her bike on East Concord Road, in Amelia, Clermont County, Ohio, was repeatedly bitten in the thigh area by the defendants’ dog, which had gotten out of the defendants’ fenced yard while defendant Jeff Hudson was taking out his trash. Further, the testimony indicates that as the dog continued to bite the plaintiff, defendant Jeff Hudson attempted to pull the dog off plaintiff. As a result of the dog attack, plaintiff Patricia Volz suffered nerve damage to her upper leg and thigh, resulting in medical and prescription bills totaling $322.52. Plaintiff experienced pain in her thigh for at least two months following the attack. Plaintiff now is afraid of all dogs as a result of the attack and no longer rides her bicycle to get the exercise she, as a diabetic, needs. Plaintiff Thomas Volz testified very briefly that his wife was the one who took care of the home office and home duties and that she was unable to perform those duties subsequent to the attack.

Apparently, this attack was not the first made by the dog in question. The dog in question attacked plaintiffs’ dog on two separate occasions in 1996. Plaintiff Thomas Volz testified that subsequent to the attack upon his wife, he learned that another individual had previously been attacked by the same dog.

Conclusions of Law

The first issue for this court’s review is the defendants’ liability, if any, for their failure to confine or otherwise supervise their dog and for harboring a vicious dog. Under the common law, a plaintiff suing for injuries sustained in a dog attack must show that the defendant “owned or harbored the dog, that the dog was vicious, that the defendant knew of the dog’s viciousness, and that the defendant was negligent in keeping the dog.” Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25-26, 608 N.E.2d 809, 812.

“A claim of negligence requires a duty, a breach of that duty, causation[,] and damages.” Carey v. AK Steel Corp. (July 13, 1998), Butler App. No. CA9802-022, unreported, 1998 WL 391183, at * 2. In order to prevail upon a claim of negligence, plaintiff must prove by a preponderance of the evidence that defen[67]*67dants owed her a duty, that they breached that duty, and that the breach proximately caused plaintiffs injuries. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 285, 21 O.O.3d 177, 179, 423 N.E.2d 467, 469.

It is clear from the testimony presented at trial and the supporting case law, that the defendants owed a duty to the plaintiffs by virtue of their ownership of the animal in question. It is further clear that the defendants breached that duty when they (1) failed to adequately confine the animal on October 5, 1999, and (2) on that same date, harbored a dog that had previously shown vicious propensities.

“[A] negligent act * * * may be considered the proximate cause of [damages] if the ‘natural and continuous sequence produces a result which would not have taken place without the act.’ ” Mazzaferri v. Weller Roofing, Inc. (Nov. 10, 1997), Butler App. No. CA96-10-097, unreported, 1997 WL 700066, at * 3, quoting Strother, 67 Ohio St.2d at 287, 21 O.O.3d at 180, 423 N.E.2d at 471. See, also, 1 Ohio Jury Instructions (2001), Section 11.10. The testimony elicited at trial indicates that the defendants’ failure to confine the dog, despite the defendants’ previous knowledge of the dog’s propensity to roam and bite, was a contributing factor to the injuries suffered by the plaintiff. If confined, the dog would not have had an opportunity to attack plaintiff on the date in question.

Based upon the competent and credible evidence adduced at trial and the supporting case law, the court finds that the defendants were negligent in their duty to confine the dog in question, and, thus, orders judgment for medical expenses incurred by the plaintiff in the amount of $322.52.

Plaintiff not only seeks compensatory damages for the medical expenses she incurred, but also damages for the pain and suffering she experienced. In awarding damages, the court must discern what will compensate and make the injured party whole. Fantozzi v. Sandusky Cement Prod. Co. (1992), 64 Ohio St.3d 601, 612, 597 N.E.2d 474, 482. Unfortunately, as noted in Carter v. Simpson (1984) 16 Ohio App.3d 420, 423, 16 OBR 490, 493-494, 476 N.E.2d 705, 708-709, “[t]here is no specific yardstick for determining the amount of damages to be awarded for pain and suffering.” ' “Pain and suffering” is used not only to describe physical discomfort and distress, but also to describe the mental and emotional trauma that are recoverable as elements of compensatory damages. Fantozzi, 64 Ohio St.3d at 615, 597 N.E.2d at 484, quoting Black’s Law Dictionary (6 Ed.1990) 1109. Mental and emotional trauma encompasses such aspects as “ ‘fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror[,] or ordeal.’ ” Id., 64 Ohio St.3d at 615, 597 N.E.2d at 485, quoting Capelouto v. Kaiser Found. Hosps. (1972), 7 Cal.3d 889, 892-893, 103 Cal.Rptr. 856, 859, 500 P.2d 880, 883.

[68]*68Patricia Volz suffered physical discomfort initially when attacked by defendants’ dog, and she continued to suffer from some amount of physical discomfort for approximately the next two months, due to nerve damage. She also suffered from emotional trauma caused by the attack. Not only did she suffer fright initially when the dog attacked her, but she continues to be frightened and/or apprehensive around dogs, and, consequently, she is too nervous to ride her bicycle around her neighborhood. In light of these injuries, the court awards judgment in the amount of $650 for Patricia Volz’s pain and suffering.

Plaintiff Thomas Volz seeks to recover for the “loss of services” provided by his wife. His testimony was so general in terms that it provides no means by which the court can determine the extent or character of services that Patricia Volz was unable to perform. In accordance with Case v. Grandstaff (May 13, 1985), Crawford App. No. 3-84-3, unreported, 1985 WL 9135, at * 2, the court finds there to be no basis upon which the court can award damages for the loss of Patricia Volz’s services.

Plaintiff Patricia Volz also requests in her complaint for the court to award punitive damages on the basis that the defendants knowingly harbored a vicious dog. The court, in its reasonable discretion, may award punitive damages in a common-law tort action against the owner of a vicious dog. Tynan v. Hanlon (1959), 110 Ohio App. 77, 79, 12 O.O.2d 252, 253, 159 N.E.2d 769, 771, citing Hayes v.

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761 N.E.2d 711, 115 Ohio Misc. 2d 63, 2001 Ohio Misc. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/volz-v-hudson-ohmunictclermon-2001.