Williams v. Toy

2023 Ohio 1844

• Court: Ohio Court of Appeals
• Decided: June 1, 2023
• Docket: 22 CA 00055
• Status: Published

Opinion

[Cite as Williams v. Toy, 2023-Ohio-1844.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

DEBBIE WILLIAMS : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellant : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : HEATH TOY, ET AL. : Case No. 2022 CA 00055 : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21 CV 00495

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: June 1, 2023

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

C. JOSEPH MCCOY DONALD G. DRINKO 65 East State Street LIZ R. PHILLIPS Suite 1300 1215 Superior Avenue Columbus, OH 43215 7th Floor Cleveland, OH 44114 Licking County, Case No. 2022 CA 00055 2

King, J.

{¶1} Plaintiff-Appellant, Debbie Williams, appeals the June 14, 2022 judgment

entry of the Court of Common Pleas of Licking County, Ohio, granting summary judgment

to Defendants-Appellees, Heath Toy and Erica Elson, on her claim for negligent infliction

of emotional distress. We reverse the trial court.

FACTS AND PROCEDURAL HISTORY

{¶2} On April 24, 2019, Williams was walking her two dogs in the neighborhood

in which she resides. As she and her dogs passed the residence owned by Toy, his pit

bull mix dog jumped the fence and attacked Williams's dogs, killing one. Elson was Toy's

girlfriend at the time and was caring for Toy's dog while he was out-of-town.

{¶3} On October 1, 2019, Williams filed a complaint alleging negligence, strict

liability, negligent infliction of emotional distress, and loss of consortium. On April 26,

2021, Williams voluntarily dismissed her complaint without prejudice pursuant to Civ.R.

41(A)(1)(a).

{¶4} On June 7, 2021, Williams refiled her complaint, alleging strict liability,

negligent infliction of emotional distress, and loss of consortium.

{¶5} On January 3, 2022, appellees filed a motion for partial summary judgment

on Williams's claims for negligent infliction of emotional distress and loss of consortium.

Appellees argued Ohio law does not provide for the recovery of damages for emotional

distress arising from witnessing damage to one's personal property and that, because

under Ohio law dogs are considered personal property, Williams's claim for emotional

distress must fail. In addition, appellees argued Ohio law does not provide for recovery

for loss of consortium of a pet. Licking County, Case No. 2022 CA 00055 3

{¶6} On March 18, 2022, Williams filed a brief in opposition, arguing she suffered

emotional distress not only from witnessing the attack on her dogs, but also from her fear

for her own personal safety during the attack.

{¶7} By judgment entry filed June 14, 2022, the trial court granted appellees'

motion for partial summary judgment, finding Williams was unable to sufficiently

demonstrate via expert testimony that the emotional distress of which she complained

was due to her fear for her own physical safety and therefore compensable under Ohio

law. The trial court also found Williams's loss of consortium claim for the loss of her dog

was not recognized in Ohio. Williams's strict liability claim proceeded to a jury trial and

judgment was rendered in favor of Williams in the amount of $2,000.00.

{¶8} Williams filed an appeal with the following assignment of error:

I

{¶9} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND

DISMISSING THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS [NIED]

CLAIM OF PLAINTIFF, DEBBIE WILLIAMS, AGAINST DEFENDANTS HEATH TOY

AND ERICA ELSON, WHEN GENUINE ISSUES OF MATERIAL FACT EXIST ON

EVERY ELEMENT OF PLAINTIFF'S NIED CLAIM."

{¶10} In her sole assignment of error, Williams claims the trial court erred in

granting summary judgment to appellees on her claim for negligent infliction of emotional

distress. We agree. Licking County, Case No. 2022 CA 00055 4

{¶11} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Regarding summary judgment, the Supreme Court stated the following in State

ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (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 nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d

466, 472, 364 N.E.2d 267, 274.

{¶12} As an appellate court reviewing summary judgment motions, we must stand

in place of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

{¶13} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13: Licking County, Case No. 2022 CA 00055 5

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

seeking summary judgment, on the ground that the nonmoving party cannot

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party." The record on summary

judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150. Licking County, Case No. 2022 CA 00055 6

{¶14} By judgment entry filed June 14, 2022, the trial court granted appellees'

motion for partial summary judgment, finding Williams did not present expert testimony to

establish the harm of which she complains resulted from appellees' conduct. While we

agree with much of the trial court's analysis, we do not agree that testimony from a

medical expert was legally required in this case. Further, the testimony before the trial

court regarding Williams's fear and severe emotional distress was sufficient to create a

genuine issue of material fact. Thus, the matter should have gone to a jury. We reverse

for the reasons that follow.

{¶15} In support of her position, Williams relied on her own deposition testimony,

the deposition testimony of her personal physician, Dr. Charles Geiger, and the affidavit

of friend, Tammie Straight.

{¶16} Williams testified on April 24, 2019, she took her dogs Amigo and Pudge for

a walk. Williams depo. at 19. Williams was five foot one, and at the time of the incident,

was approximately sixty-four years old. Id. at 14, 35. As she was walking past Toy's

residence, she watched Elson open the door and saw a dog "flying out." Id. at 49.

Williams had walked past the residence when she saw Elson beside the dog; she also

observed that the dog was jumping, trying to get over the fence. Id. at 49-50. Williams

saw the dog clear the fence, and her testimony then was that the dog "came foaming at

the mouth, snarling, red eyed, coming [towards her]." Id. at 50, 52.

{¶17} At that point in time, Williams testified, "I thought we were all dead." Id. at

50. Williams held on to each of her dogs' leashes and was "screaming at the top of my

lungs." Id. at 58. The dog reached them and then clamped down on Pudge's head and Licking County, Case No. 2022 CA 00055 7

neck several times. Id. The attacking dog shook Pudge "in a frenzy, an absolute frenzy";

Williams never stopped screaming. Id. at 59. The dog released Pudge, and shortly after

began its next attack. Id. at 60. Williams was not sure if the dog was coming at her or

Amigo because "there was no white in her eyes, it was just like red in her eyes and she

just - - she looked at me and she looked at him as if she was deciding which way to go,

and she nailed him." Id. Ultimately the dog attacked Amigo—not her. The dog shook

and shook Amigo and then released him. T. at 61. Neighbors came out and fought off

the dog and helped Williams escape with her two dogs. Id. at 62-63.

{¶18} Following the attack on Pudge, Elson came to retrieve her dog; Elson

returned the dog to Toy's backyard; but in short order the dog jumped the fence again

and attacked Amigo again. Id. at 64-67. While Elson was attempting to bring her dog

under control, she was bitten. Id. at 65-66. There is dispute among the parties which

dog bit her. While Elson maintains one of Williams's dogs bit her, Williams testified it was

"impossible" for either of her dogs to have bitten Elson because her dogs "never made a

sound, never did anything." Id. at 65; Elson depo. at 10.

{¶19} Williams testified to the serious psychological injuries she received from the

incident and the medications she was on. Id. at 90-91. Williams testified, "I couldn't even

go out of my house. I was too frightened there might be something out there, a big dog

running loose to attack me. I am very lucky that I am alive right now. That dog looked at

me when he had Amigo in his mouth. He looked at me as if he was going to put Amigo

down and come for me." Id. at 96. Williams was not physically injured during the incident,

but "[m]ost definitely" perceived she was going to be attacked. Id. at 96-97. Williams

testified her emotional distress claim was related to seeing Amigo "murdered" "[a]nd being Licking County, Case No. 2022 CA 00055 8

terrified that I'm going to die too. I thought we all three were going to die that day." Id. at

97.

{¶20} Dr. Geiger has been Williams's family physician since October 2017.

Geiger depo. at 21-22. He saw her in May 2019, approximately one month following the

dog incident. Id. at 10. He diagnosed her with post-traumatic stress disorder ("PTSD")

from the incident. Id. at 14. Williams was "struggling with increased anxiety" and

depression. Id. Dr. Geiger opined Williams's PTSD was caused by "her witnessing her

dogs being attacked and severely injured or killed, depending on which dog you talk

about." Id. at 17. He agreed her serious emotional distress was significant and

debilitating. Id. at 18. He increased the dose of one of her medications to help with the

depression. T. at 19-20.

{¶21} Dr. Geiger testified this dog incident was not the first time he had treated

Williams for a dog attack, explaining he had treated her on August 24, 2018 for a dog

attack in which she was bitten by a stray dog who attacked her dog. Id. at 32. During the

2018 incident Williams was bitten; in contrast, during the 2019 incident, Williams's dogs

were attacked. Id. at 33. We note that the person who negligently inflicts injury on another

must accept the injured party as encountered. McDevitt v. Wenger, 5th Dist. Tuscarawas

No. 2002AP090071, 2003-Ohio-6096, ¶ 34-35. So, this testimony is relevant as to

whether Williams suffered severe emotional distress.

{¶22} While the testimony from Dr. Geiger suffers from a lack of clarity, it does

appear that Williams reported to him that she was in fear for her own safety. When

questioned about his office records pertaining to the May 2019 appointment, Dr. Geiger

acknowledged there was nothing in the record to indicate "she was fearful for her own Licking County, Case No. 2022 CA 00055 9

safety, that she had any kind of traumatic reaction for her own safety," but testified "she

also did relate some fear to herself, you know, that the dog might turn on her." Geiger

depo. at 34. Dr. Geiger admitted that was not written in the record. Id. The following

exchange then occurred at 39-40:

Q. The stressor - - the stressor in your diagnosis of post-traumatic

stress disorder was witnessing the death of her dog; correct?

A. Correct.

Q. She didn't report to you anything about fearing for her own safety

because that would be in the records and it's not?

***

A. I didn't put it in. It probably should have been.

{¶23} In addition, Williams presented lay testimony about the impact of the attack

on her. Williams's friend, Tammie Straight, averred she has known Williams for

approximately 7-8 years. Straight aff. at ¶ 3. Straight stated she has observed Williams

"suffering from severe emotional distress as a result of the attack" and the severe

emotional distress is "severe and debilitating." Id. at ¶ 9 and 10. Straight further stated:

"Before the attack, I would go on walks regularly with Debbie. We no longer go on walks.

Debbie is much more emotional, anxious, and fearful following the attack." Id. at ¶ 12.

{¶24} In response to this testimony, appellees argue a plaintiff cannot suffer

emotional distress by watching personal property be destroyed. And by personal

property, appellees refer to Williams's pet dog Amigo that was mauled to death next to Licking County, Case No. 2022 CA 00055 10

her, citing R.C. 955.03 (dogs are personalty) and Oberschlake v. Veterinary Associates

Animal Hospital, 151 Ohio App.3d 741, 2003-Ohio-917, 785 N.E.2d 811, ¶ 15 (2d Dist.)

("Ohio does not recognize noneconomic damages for injury to companion animals"). But

Williams's negligent infliction of emotional distress is predicated on her own fear of injury

during the incident. The critical fact is that Williams's psychological injuries arising from

her exposure to physical danger is distinct damages from the emotional distress she may

have suffered watching the attacks on her dogs.

{¶25} In Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129

L.Ed.2d 427 (1994), the Supreme Court of the United States reviewed a negligent

infliction of emotional distress claim under the Federal Employers' Liability Act. A railroad

worker witnessed the death of a coworker under harsh working conditions. The railroad

worker was performing the same tasks as the deceased worker. The court found the

railroad worker's claim for negligent infliction of emotional distress could survive summary

judgment under the common law "zone of danger" test. This test "limits recovery for

emotional injury to those plaintiffs who sustain a physical impact as a result of a

defendant's negligent conduct, or who are placed in immediate risk of physical harm by

that conduct." Id. at 547-548. The zone of danger test has been acknowledged by the

Supreme Court of Ohio in Paugh v. Hanks, 6 Ohio St.3d 72, 75-76, 451 N.E.2d 759

(1983), and Dobran v. Franciscan Medical Center, 102 Ohio St.3d 54, 2004-Ohio-1883,

806 N.E.2d 537, ¶ 17-18. See also Heintzelman v. Air Experts, Inc., 5th Dist. Delaware

No. 2005-CAPE-08-0054, 2006-Ohio-4832, ¶ 35-38. However, the test did not apply to

the facts in the three cited cases. We find the zone of danger test applies in the case sub

judice. Licking County, Case No. 2022 CA 00055 11

{¶26} Here, there is no doubt that Williams was "placed in immediate risk of

physical harm" because of appellees' conduct. Once Elson opened the door of the

residence and set the dog loose, the dog jumped the fence, charged, attacked Pudge,

was retrieved by Elson, jumped the fence again, charged again, and then killed Amigo.

All the while, Williams was standing in the middle of the melee, holding on to her two

leashes and screaming. Thus, the same course of events that resulted in Amigo's death

simultaneously put Williams at risk of physical harm. Accordingly, the trial court correctly

held that Williams was in the zone of danger. June 14, 2022 Judgment Entry at 6. Indeed,

the trial court noted that the record reflected Williams's fear of the attacking dog and

"specifically of the possibility that she might be that animal's next target." Id.

{¶27} Although the trial court appears to conclude that Williams suffered

emotional distress, appellees argue the contrary. We agree with the trial court. "[S]erious

emotional distress describes emotional injury which is both severe and debilitating."

Paugh at 78. As cited above, Williams established that she experienced serious

emotional distress following the dog attack. Williams depo. at 90-91, 96-97; Geiger depo.

at 14, 18, 19-20, 34, 39-40; Straight aff. at ¶ 9, 10, 12.

{¶28} Appellees characterize this emotional distress as arising solely from

witnessing the death of Amigo. But this characterization is both inaccurate and beside

the point. In the ordinary case where a pet dog is mauled and killed while under the

owner's control, the owner will usually be in reasonable fear of injury too. A defendant

may be able to point to facts to rebut that such an owner was also in danger during a dog

attack, but appellees were unable to do so here. Thus, this incident is distinguishable

from one where the owner of the dog being mauled to death is outside the zone of danger Licking County, Case No. 2022 CA 00055 12

and not simultaneously in danger of physical harm from the dog attack. Particularly when,

as in the case here, Williams had previously been the victim of a dog bite.

{¶29} Despite finding Williams to be in the zone of danger and experiencing

PTSD, the trial court found Williams could not prevail because she failed to "demonstrate,

via expert testimony, that the harm of which she complains" resulted from appellees'

conduct. We hold expert testimony was not required here.

{¶30} The Supreme Court of Ohio has held that lay testimony regarding the

emotional distress can be sufficient. Paugh at 80 ("lay witnesses who were acquainted

with the plaintiff, may testify as to any marked changes in the emotional or habitual

makeup that they discern in the plaintiff after the accident has occurred. The jurors

themselves, can refer to their own experiences in order to determine whether, and to what

extent, the defendant's conduct caused the serious emotion[al] distress"). See also White

v. Bhatt, 2017-Ohio-9277, 102 N.E.3d 607, ¶ 28 (5th Dist.). Here, the lay testimony

broadly supported Williams’s claims.

{¶31} The Supreme Court of Oho did leave open the possibility that in some

cases, a plaintiff will need expert testimony to demonstrate the "genuineness" of their

emotional distress. Paugh at 76-77. One such area where courts of appeals have

determined that expert testimony is necessary is when the underlying tortuous act sounds

in medical negligence. White, supra (plaintiffs claimed severe emotional distress by

witnessing their mother's negligent medical care); Powell v. Grant Medical Center, 148

Ohio St.3d 1, 2002-Ohio-443, 771 N.E.2d 874 (plaintiffs claimed severe emotional

distress from hospital's negligent handling of their mother's dead body); Grote v. J.S. Licking County, Case No. 2022 CA 00055 13

Mayer & Co., 59 Ohio App.3d 44, 570 N.E.2d 1146 (1st Dist.1990) (plaintiff claimed

emotional distress arising from negligent psychological counseling).

{¶32} These cases are distinguishable in a couple ways. First, the case sub judice

is not a case arising from a claim of professional negligence. Second, Williams was

directly exposed to physical harm, she was not a mere bystander. In accord with Paugh

and White, there was no absolute requirement here for expert testimony to establish

"genuineness." We acknowledge the expert testimony in this case was less than helpful

to Williams. But Williams's testimony about her fear of being exposed to physical harm

during the dog attack, in conjunction with Dr. Geiger's testimony about her diagnosis and

treatment, was sufficient to resist summary judgment on this issue.

{¶33} Upon review, we find the trial court erred in granting summary judgment to

appellees.

{¶34} The sole assignment of error is granted. Licking County, Case No. 2022 CA 00055 14

{¶35} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings.

By King, J.

Baldwin, J. concur and

Hoffman, P.J. concurs separately. Licking County, Case No. 2022 CA 00055 15

Hoffman, P.J., concurring

{¶36} I concur in the majority’s analysis and disposition of Appellant Williams’ sole

assignment of error. I write separately primarily because I would go further and recognize

an exception to the general rule barring a negligent infliction of emotional distress claim

for witnessing damage to one’s own personal property.1 I would allow such a claim when

the personal property damaged is a living creature as opposed to an inanimate piece of

personal property.

1 I find additional support for the majority’s analysis when considering the dispute as to which of the three dogs bit Elson. Because we are required by Civ.R. 56 to consider the evidence in a light most favorable to the non- moving party (Williams), we must accept Williams’ claim she saw Toy’s dog bite Elson before it renewed its attack on Williams’ second dog. I also find a third, additional distinction between the case sub judice and the Paugh and White decisions. The situation giving rise to the two separate causes of Williams’ emotional distress: 1) witnessing the brutal attack of her dogs; and 2) fear for her own personal safety, occurred simultaneously, rather than by events separated in time. Williams’ status was both a bystander and an injured party at the same time.