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Khamis v. Everson6/10/1993
FREDERICK N. YOUNG, Judge.
Maan Khamis (appellant) appeals from a judgment of the Montgomery County Court of Common Pleas which granted a motion for a directed verdict in favor of Brad Everson (appellee), the owner of a dog which allegedly bit appellant.
On or about April 26, 1991, appellee had brought his dog, a male shar-pei, to the Harrison Kennels, to be cared for until May 5, 1991. Appellee told the personnel at the kennel that his dog might bite. The personnel made a note of this.
On April 29, 1991, appellant was working at the kennel voluntarily for his friend Gloria McGlothin, the owner of Harrison Kennels. Appellant's tasks involved changing the hay and water in each dog's cage, leaving food for the dogs, and ensuring that each dog returned to his cage. McGlothin instructed appellant on how to perform this task.
After appellant had changed the water and hay and left food in appellee's dog's cage, appellant motioned for appellee's dog to return. It was then that appellee's dog allegedly bit appellant on his right hand.
Appellant was taken to the hospital by a co-worker to have the wound treated. The wound became infected and appellant was required to undergo surgery on his middle finger. Appellant incurred a total of $5,895.96 in medical bills as a result of the incident.
Appellant sued appellee under R.C. 955.28(B), which holds the "owner, keeper, or harborer of a dog" strictly liable for any injury that is proximately caused by the dog, with certain exceptions. Appellant chose not to bring a common-lasnegligence claim. In response, appellee impleaded Gloria McGlothin as a third-party defendant.
After appellant's motion for summary judgment was overruled by the trial court on March 17,1992, the case was submitted to arbitration. The arbitration panel found for appellee and appellant appealed this decision to the court of common pleas. A trial date was set for November 16, 1992.
After the appellant had presented his case-in-chief, appellee moved for a directed verdict pursuant to Civ.R. 50(A). Appellee argued that because appellant was a "keeper" within the meaning of R.C. 955.28(B), appellant was not entitled to bring an action pursuant to that strict liability statute.
On November 24, 1992, the trial court sustained appellee's motion for a directed verdict and entered a judgment in favor of appellee and against appellant. Costs were assessed to appellant.
Appellant filed a timely notice of appeal to the trial court's November 24, 1992 judgment entry. On appeal, appellant does not challenge the trial court's finding that appellant was a "keeper" within the meaning of R.C. 955.28. The only question that appellant presents for us on this appeal is set forth in his one assignment of error:
"The trial court erred in granting defendant-appellee's motion for directed verdict in that Ohio Revised Code Section 955.28 does not preclude a 'harborer or keeper' of a dog from recovering damages from the owner of a dog for injuries sustained by the harborer or keeper."
R.C. 955.28(B) states as follows:
"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, or abusing the dog on the owner's, kee
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