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Montgomery v. Zalud8/20/1998
re the dog lives, and silently acquiesces to the dog's presence and has an absolute duty to control the animal. Khamis, 88 Ohio App.3d at 226. Therefore, in order for the appellee to prevail on the motion for summary judgment, the appellee must prove conclusively that Montgomery, as a resident tenant, had control and possession over the appellee's house and had acquiesced to Sacci's presence in the house.
The facts before this court prove that although Montgomery never formally paid rent to Zalud for the right to reside in her home, she did offer and relinquish $900 to $950 to Zalud, in order to help with expenses. She was given a key, which allowed her to come and go as she pleased, and also given full reign of the house. She did not object to the presence of Sacci in appellee's home, which may be construed as acquiescence. The precise question that remains is whether the plaintiff was a harborer of the dog so as to bar recovery under the statute.
As stated in Flint v. Holbrook (1992), 80 Ohio App.3d 21, 608 N.E.2d 809, a harborer is one who has possession and control of the premises where the dog lives, And further, as indicated in Khamis, supra, an owner, keeper or harborer is one who has an absolute duty to control the animal. Here, plaintiff temporarily resided in defendant's home. This fact is not sufficient to establish control of the premises. Also, contrary to establishing that plaintiff had an absolute duty to control the dog, the evidence clearly indicated she was instructed to stay away from the dog.
For these reasons, summary judgment was improper.
Reversed and remanded for further proceedings.
This cause is reversed and remanded for proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee her costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
JOSEPH J. NAHRA PRESIDING JUDGE
SPELLACY, J., and ROCCO, J., CONCUR.
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