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Bowman v. Stott12/31/2003
Decision and Journal Entry
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Plaintiff-Appellant, Cheryl Bowman, has appealed from an order granting summary judgment to Defendant-Appellee, John E. Stott. This Court reverses and remands.
I.
Bowman and Stott were unmarried and lived together at a home owned by Stott. Approximately nine months prior to the incident which forms the basis of this action, Stott purchased a Rottweiler dog named Sampson. Five months later, Bowman was bitten by the dog. On or about July 8, 2001, the dog again bit Bowman, this time causing severe injury and prompting this action.
By initial and amended complaints, Bowman alleged causes of action for personal injury under both R.C. 955.28 and the common law. Stott filed motions for summary judgment as to each cause of action, and Bowman opposed. The trial court granted summary judgment to Stott on both claims. As to the statutory claim, the trial court concluded that Bowman's actions qualified her to be a harborer, and that she was therefore barred from seeking relief under the statute. As to the common law claim, the trial court found that Bowman could not recover because she harbored the dog, and she also had knowledge of the dog's propensity for violence based on the previous bite. Bowman has appealed and has assigned one error for review.
II.
Assignment of Error
"THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON APPELLANT'S STATUTORY AND COMMON LAW DOG BITE CLAIMS."
Bowman has claimed that the trial court erred in granting summary judgment in favor of Stott on both counts. More specifically, Bowman has argued that genuine issues of material fact exist as to whether Stott was (1) strictly liable under R.C. 955.28 and (2) negligent at common law with regard to injuries sustained by Bowman due to the dog bite.
Pursuant to Civ.R. 56(C), summary judgment is proper if:
"(1) No genuine issue as to any material act 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. (1977), 50 Ohio St.2d 317, 327.
Appellate review of a lower court's entry of summary judgment is de novo, applying the same standard used by the trial court. McKay v. Cutlip (1992), 80 Ohio App.3d 487, 491. Because it is a procedural device to terminate litigation, summary judgment must be awarded with caution. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358, quoting Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2.
We first consider the trial court's award of summary judgment to Stott on the statutory claim. R.C. 955.28(B) imposes strict liability on one who owns, keeps, or harbors a dog for an injury to person or property, which is caused by the dog, unless certain exceptions apply. R.C. 955.28(B) provides:
"The owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, keeper, or harborer, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting
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