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Johnson v. Gay11/15/2005
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, keeper's, or harborer's property.
{ } This statute imposes strict liability on the owner, keeper, or harborer of a dog for any injury to person or property, which is caused by the dog, subject to certain exceptions. Stuper v. Young, Summit App. No. 20900, 2002-Ohio-2327, at . It is undisputed that appellees own the dog that bit appellant. Appellees contend, however, that they are not liable to appellant because he was trespassing on their property when the dog bit him. Trespass is an affirmative defense to an action brought pursuant to R.C. 955.28. Stempuzis v. Hildebrand, Franklin App. No. 03AP-86, 2003-Ohio-6060, at , Padgett v. Sneed (July 19, 1995), Hamilton App. No. C-940145, at fn. 1. Appellant contends the trial court erroneously ruled that he was a trespasser. We disagree.
{ } A trespasser is defined as a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. Stempuzis at . Appellant admitted that his hand was on appellees' fence when their dog bit him. Appellant claims, however, that because he did not reach over appellees' fence or actually step onto their property, he was not a trespasser. We disagree. Appellant can be a trespasser without actually stepping onto appellees' property. See Misseldine v. Corporate Investigative Services, Inc., Cuyahoga App. No. 81771, 2003-Ohio-2740, at . A trespass may be committed by invading the airspace of the property of another. Id., citing Hannabalson v. Sessions (1902), 116 Iowa 457. This principle is based upon the concept that an owner of land owns so much of the space above the ground as he can occupy or make use of. Chance v. BP Chemicals, Inc. (1996), 77 Ohio St.3d 17, 25; see, also, Willoughby Hills v. Corrigan (1972), 29 Ohio St.2d 39, 50. Appellee, Kent Gay, stated in his affidavit in support of appellees' motion for summary judgment that his fence was installed around the backyard of his property.
Appellant did not dispute that the fence enclosed appellees' backyard or that the fence was located on appellees' property. Appellant admitted that his palm was on top of appellees' fence when appellees' dog bit him. Therefore, appellant's hand was on appellees' property. It was undisputed that appellant did not have appellees' consent to access their property. This is sufficient, as a matter of law, to constitute a trespass. Misseldine.
{ } Because appellant technically was trespassing on appellees' property when appellees' dog bit him, appellees are not liable to appellant under R.C. 955.28(B). Accordingly, the trial court did not err when it granted appellees summary judgment on appellant's statutory claim for damages pursuant to R.C. 955.28(B).
{ } Appellant's lone assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN, P.J., and McGRATH, J., concur.
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