Dilgard v. McKinniss
2024-Ohio-1106 (2024)
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Rule of Law:
To be considered a 'harborer' of a dog for purposes of strict liability under R.C. 955.28(B), an individual must have possession and control of the premises where the dog lives, and a landlord out of possession and control of the premises is typically not a harborer of a tenant's dog, even if they retain the right to inspect or object to the dog's presence.
Facts:
- Pamela and Steven Dilgard lived about a block from Corey J. McKinniss, who resided in a house owned by his grandparents, Arnold C. and Bonnie J. McKinniss.
- In 2018, the year after Corey moved into the house, he acquired two white dogs named Gator and Kora.
- Corey and Arnold had an agreement where Corey would provide yard work (mow grass, shovel snow) and pay utilities in exchange for living there, also handling most day-to-day maintenance and repairs.
- Corey informed his grandparents about getting the dogs, and although Bonnie objected and Arnold 'kind of' objected, Corey proceeded to get them without being stopped.
- Corey lived alone in the house, decided who could enter the property, and his grandparents did not impose restrictions on his activities there, with Arnold stating Corey could 'basically do what he wants'.
- Arnold visited the Center Street house about four times a month to see Corey and check on the property, and Bonnie had visited but not been inside for roughly a year before the incident.
- On January 18, 2021, while Pamela Dilgard walked her dog past Corey's house, Gator ran from the backyard and attacked her dog.
- During Corey's attempt to separate the dogs, Pamela was bitten on her left thumb, knocked to the ground, and later required stitches for the laceration at the hospital.
Procedural Posture:
- On May 18, 2021, Pamela and Steven Dilgard filed a complaint against Corey J. McKinniss, Arnold C. McKinniss, and Bonnie J. McKinniss in the Hancock County Court of Common Pleas (trial court).
- On March 28, 2022, Arnold and Bonnie McKinniss filed a motion for summary judgment, arguing they did not have substantial control of the premises and thus could not be held liable.
- On August 2, 2022, the trial court issued a decision granting summary judgment in favor of Arnold and Bonnie McKinniss.
- On August 25, 2023, Pamela and Steven Dilgard (Appellants) filed a notice of appeal to the Court of Appeals of Ohio, Third Appellate District, challenging the trial court’s grant of summary judgment in favor of Arnold and Bonnie McKinniss (Appellees).
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Issue:
Does a landlord, who is also the property owner, qualify as a 'harborer' of a tenant's dog under R.C. 955.28(B) when the landlord does not have possession and control of the leased premises?
Opinions:
Majority - Willamowski, P.J.
No, a landlord, even if they are the property owner and the tenant's grandparent, does not qualify as a 'harborer' of a tenant's dog under R.C. 955.28(B) if they do not have possession and control of the leased premises. The court affirmed the trial court's grant of summary judgment, finding that Arnold and Bonnie McKinniss were not 'harborers' of Corey's dogs. 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,' with the focus shifting to possession and control of the premises rather than the dog itself. The record established a landlord-tenant relationship where Corey had possession and control: he lived alone, paid utilities, performed maintenance, and controlled who entered the property. The court reiterated that a landlord out of possession and control is typically not a harborer, and that a lease agreement generally transfers possession and control to the tenant. The mere fact that a landlord has control over whether a dog is allowed on the premises, knowledge of its presence, retaining the right to inspect, or performing routine acts like repairs, is insufficient to establish harborship. Arnold’s frequent visits to check on the property and Corey, and Bonnie's occasional visits, were not deemed inconsistent with Corey’s overall possession and control, especially given their parent-like role in Corey's life. Therefore, the Dilgards failed to establish a genuine issue of material fact regarding Arnold and Bonnie's harborship.
Analysis:
This case reinforces the strict interpretation of 'harborer' under Ohio's dog-bite statute, R.C. 955.28(B), particularly in landlord-tenant relationships. It solidifies the principle that property ownership alone or familial ties are insufficient to establish harborship; rather, actual 'possession and control of the premises' is the critical determinant. Landlords can avoid liability as harborers by ensuring their lease agreements and actions do not demonstrate day-to-day control over the property, even if they visit or initially object to a tenant having a dog. This decision provides clarity for property owners on their potential liability for dogs kept by tenants, emphasizing the transfer of control inherent in a typical lease.
