Brown v. Terrell
114 N.E.3d 783, 2018 Ohio 2503 (2018)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A landlord who does not maintain actual possession and control of the premises where a tenant's dog resides is generally not considered a 'harborer' for purposes of dog bite liability under Ohio law, even if they co-own the property and have an informal living arrangement.
Facts:
- In February 2016, Thomas Brown's seven-year-old son, T.L., was playing ball on his driveway.
- The ball rolled near a pit bull chained at the next-door property, 758 Kipling Street, belonging to Territa Terrell.
- The pit bull broke free from its chain and attacked T.L., biting through his ankle and fracturing a bone, which required surgery and implants.
- Territa Terrell lived at 758 Kipling Street, a house co-owned by her grandmother, Yvonne Terrell, and Yvonne's brother.
- Yvonne Terrell permitted Territa to live at the house without a written lease agreement, and Territa rarely paid rent but covered utilities.
- Yvonne Terrell paid for homeowners' insurance and initially for property maintenance, but Territa later took over maintenance responsibilities.
- Yvonne Terrell had not lived at the property since 1975 and had only visited Territa's house approximately three times in three years, primarily remaining outside and only seeing the dog once.
- Yvonne Terrell once told Territa that she did not want a certain young man at the property after a domestic incident but never followed up to ensure compliance.
Procedural Posture:
- Thomas Brown filed a personal injury complaint on behalf of his son against Territa Terrell and Yvonne Terrell in the Summit County Court of Common Pleas, alleging common law negligence and strict liability for damages from a dog bite.
- Yvonne Terrell filed a motion for summary judgment, claiming she was not the owner, keeper, or harborer of the dog.
- Allstate Indemnity Company intervened as a third-party defendant and filed its own motion for summary judgment.
- The trial court granted summary judgment in favor of both Yvonne Terrell and Allstate Indemnity Company.
- Thomas Brown appealed the trial court's order granting summary judgment in favor of Yvonne Terrell to the Ninth Judicial District Court of Appeals of Ohio.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a property owner, who permits a relative to live in a single-family home without a formal lease and with infrequent rent payments, qualify as a 'harborer' of the relative's dog for purposes of statutory dog bite liability under R.C. 955.28, when the owner does not maintain present possession and control over the premises?
Opinions:
Majority - Teodosio, P.J.
No, a property owner who permits a relative to live in a single-family home without a formal lease and with infrequent rent payments does not qualify as a 'harborer' of the relative's dog for purposes of statutory dog bite liability, where the owner does not maintain present possession and control over the premises. The court affirmed the trial court's grant of summary judgment, reasoning that a 'harborer' is defined as one who 'has possession and control of the premises where the dog lives, and silently acquiesces to the dog’s presence.' The court emphasized that a landlord out of possession is generally not the harborer of a tenant's dog. For a single-family residence, there is a presumption that the tenant possesses and controls the entire property. The court held that routine landlord activities, such as paying insurance, making repairs, retaining the right to inspect, or even the power to evict, do not constitute the 'control' necessary to establish liability. Instead, 'control' implies the power and the right to admit and exclude people from the property, coupled with a substantial exercise of that right. Yvonne's infrequent visits, lack of residence at the property for decades, and unverified request for a person to leave the premises did not demonstrate the requisite possession and control to overcome the presumption that Territa had exclusive possession and control of the property. Mere knowledge of the dog's presence is insufficient without concurrent possession and control of the premises. The court distinguished the outlier case of Hill v. Hughes, noting its criticism and factual dissimilarities, particularly its implications of broader landlord control.
Analysis:
This case clarifies the strict definition of 'harborer' under Ohio's dog bite statute, particularly in the context of informal landlord-tenant relationships. It reinforces that property ownership alone, or engaging in routine landlord activities, is insufficient to establish the 'possession and control' required for liability. The ruling establishes a high bar for holding absentee landlords liable for tenant's dogs, requiring a demonstrated right and actual exercise of control over the premises, including the power to admit and exclude. This limits the scope of liability for landlords who cede operational control to their tenants, providing a clearer standard for future cases involving dog bite claims against non-occupant property owners.
