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Johnson v. Gay11/15/2005
{ } Plaintiff-appellant, David L. Johnson, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment to defendants-appellees, Kent C. Gay and Aprile L. Gay. For the following reasons, we affirm that judgment.
{ } On April 24, 2003, appellant, a licensed real estate agent, had an appointment to walk through a house at 5079 Locust Post Lane in Columbus, Ohio. Before the appointment, his clients called him to discuss their neighbor's fence which they thought might encroach on their property. To get a better view of the fence's location in relation to the property line, appellant walked across the street to a sidewalk bordering appellees' backyard at 5103 Wagon Wheel Lane. A four-foot high wooden picket fence stood between the sidewalk and appellees' backyard. Appellant leaned back against the fence and placed the palm of his right hand on top of one of the fence pickets. While his hand was on the fence, appellees' dog bit appellant's forearm, causing serious injury. Although appellant saw the dog in appellees' yard, it did not appear aggressive. Nor did he hear the dog bark or see the dog approach him.
{ } Appellant filed a complaint against appellees to recover damages caused by the dog bite. Appellant set forth claims for common law negligence and violation of R.C. 955.28, which imposes strict liability on a dog owner for injuries caused by the owner's dog. Appellees moved for summary judgment, arguing that they were entitled to judgment as a matter of law because appellant was a trespasser at the time of the attack. In response, appellant claimed he was not a trespasser or there was at least a question of fact as to whether he was a trespasser when the attack occurred. In a decision dated April 15, 2005, the trial court granted appellees' motion, finding that appellant was a trespasser when appellees' dog bit him and that appellant failed to provide evidence to support his statutory and common law claims.
{ } Appellant appeals, assigning the following error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT IN GRANTING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT, FINDING THAT PLAINTIFF-APPELLANT WAS A "TRESPASSER" ONTO DEFENDANTS-APPELLEES' PROPERTY, THEREBY PRECLUDING PLAINTIFF-APPELLANT FROM RECOVERING DAMAGES CAUSED ON APRIL 24, 2003, WHEN DEFENDANTS-APPELLEES' DOG BIT PLAINTIFF-APPELLANT.
{ } Appellant appeals from the trial court's grant of summary judgment in appellees' favor. Appellate review of summary judgment motions is de novo. Helton v. Scioto Cty. Bd. of Commrs. (1997), 123 Ohio App.3d 158, 162. "When reviewing a trial court's ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court." Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103. Civ.R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183.
{ } Pursuant to R.C. 955.28(B):
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,
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