Mota v. Gruszczynski ( 2012 )

[Cite as Mota v. Gruszczynski, 197 Ohio App.3d 750, 2012-Ohio-275.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97089
MOTA ET AL.,
APPELLANTS,
v.
GRUSZCZYNSKI ET AL.
APPELLEES.
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-731900
BEFORE: Boyle, P.J., Cooney, J., and Rocco, J.
RELEASED AND JOURNALIZED: January 26, 2012
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ATTORNEYS:
Goldstein & Goldstein Co., L.P.A., Michael D. Goldstein, and Ladi Williams, for
appellants.
Williams, Moliterno & Scully Co., L.P.A., and William F. Scully Jr., for
appellees.
3
MARY J. BOYLE, Presiding Judge.
{¶ 1} Plaintiff-appellant, Thomas Mota, a licensed bounty hunter, was attacked by
a dog while pursuing Jerome J. Gruszczynski inside the residence of Jerome J.’s
parents—the defendants-appellees, Jerome M. and Marion Gruszczynski. Mota and his
wife, Bryn, subsequently brought a lawsuit against Jerome M. and Marion, alleging
claims for (1) negligence, (2) strict liability under R.C. 955.28(B) (Ohio’s dog-bite
statute), and (3) loss of consortium. The trial court granted the Gruszczynskis’ motion
for summary judgment, and Mota and his wife now appeal, raising the following single
assignment of error:
{¶ 2} “The trial court erred in granting defendants-appellees’ motion for summary
judgment.”
{¶ 3} We affirm.
Procedural History and Facts
{¶ 4} In late July 2009, Mota, a licensed surety bail agent (“bounty hunter”),
received a contract from ABC Bail Bonds to arrest Jerome J., who had failed to appear
in municipal court on the charge of driving under suspension.
{¶ 5} Although not living at Jerome M. and Marion’s home on East 55th Street in
Slavic Village, Jerome J. was taking care of the house while his parents were in Florida.
Jerome J. was living with his girlfriend at her father’s house, which was within walking
distance of his parents’ home. Jerome J.’s dog, “Buckshot,” however, had delivered
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puppies at his parents’ house a few days before Mota came with his team. With his
parents’ permission, Jerome J. left Buckshot and the puppies on his parents’ back porch,
where he checked on them daily.
{¶ 6} Acting on a tip from Cuyahoga Heights police that Jerome J. may be at his
parents’ house, Mota, along with two other bounty hunters, went to the East 55th Street
address on July 27, 2009. They discovered Jerome J. sitting in the fenced-in backyard
with two friends, drinking beer. As soon as Mota and his team displayed their badges,
Jerome J. fled into the house through the back door. Mota pursued him onto the back
porch where he was immediately confronted by Buckshot, who bit his hand and would
not let go. Once Mota freed his hand, Buckshot continued to attack him, forcing him
out of the house and biting his left wrist. Mota backed away, and Buckshot bit his
scrotum and thigh. Mota eventually escaped over the fence.
{¶ 7} Following the incident, Mota commenced the underlying action against
Jerome J. and his parents, Jerome M. and Marion, alleging that they were liable for the
injuries that he sustained from Buckshot. Jerome J. did not file an answer and is not a
party to this appeal. The trial court ultimately granted summary judgment in favor of
Jerome M. and Marion, finding that they were not strictly liable under the dog-bite
statute because Mota was trespassing at the time of the attack. The court additionally
found that they could not be liable for common-law negligence, because keeping the dog
in an enclosed porch does not constitute willful, wanton, or reckless conduct likely to
injure a third person. Additionally, having found that Mota’s claims failed as a matter
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of law, the court further held that his wife’s loss-of-consortium claim failed too.
Standard of Review
{¶ 8} We review an appeal from summary judgment under a de novo standard.
Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly,
we afford no deference to the trial court’s decision and independently review the record to
determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v.
Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th
Dist.1997).
{¶ 9} Civ.R. 56(C) provides that before summary judgment may be granted, a court
must determine that “(1) no genuine issue as to any material fact 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 the evidence
most strongly in favor of the nonmoving party, that conclusion is adverse to the
nonmoving party.” State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190,
191, 672 N.E.2d 654 (1996).
{¶ 10} The moving party carries an initial burden of setting forth specific facts
that demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden,
summary judgment is not appropriate, but if the movant does meet this burden, summary
judgment will be appropriate only if the nonmovant fails to establish the existence of a
genuine issue of material fact. Id. at 293.
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Ohio’s Dog-Bite Statute, R.C. 955.28
{¶ 11} Mota seeks to impose strict liability upon Jerome M. and Marion under
Ohio’s dog-bite statute, R.C. 955.28(B), which provides 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
criminal trespass or another criminal offense other than a minor
misdemeanor on the property of the owner, keeper, or harborer, or was
committing or attempting to commit a criminal offense other than a minor
misdemeanor against any person, or was teasing, tormenting, or abusing
the dog on the owner’s, keeper’s, or harborer’s property. Additionally, 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 if the injury,
death, or loss was caused to the person or property of an individual who, at
the time of the injury, death, or loss, was on the property of the owner,
keeper, or harborer solely for the purpose of engaging in door-to-door
sales or other solicitations regardless of whether the individual was in
compliance with any requirement to obtain a permit or license to engage in
door-to-door sales or other solicitations established by the political
subdivision in which the property of the owner, keeper, or harborer is
located, provided that the person was not committing a criminal offense
other than a minor misdemeanor or was not teasing, tormenting, or abusing
the dog.
(Emphasis added.)
{¶ 12} Mota argues that the trial court wrongly applied the law governing “civil
trespass” as the standard in determining that Jerome M. and Marion had a statutory
defense—the standard prior to the 2008 amendment to the statute. Under the new
amendment, which was in effect when the dog bite occurred, a civil trespass is not
enough; a defense arises only if the plaintiff was “criminally” trespassing on the
property. Mota contends that his claim must survive summary judgment as there is no
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support that he was criminally trespassing. The Gruszczynskis concede that the current
version of R.C. 955.28(B) limits the trespass defense to only criminal trespass (as
opposed to both civil and criminal trespass) but contend that Mota’s actions constitute a
criminal trespass, i.e., he entered their property without their consent and without
privilege to do so.
Relevance of Bounty-Hunter Statute, R.C. 2713.22, to
Criminal Trespass, as Defined in R.C. 2911.21
{¶ 13} R.C. 2911.21, which governs criminal trespass, provides:
No person, without privilege to do so, shall [k]nowingly enter or
remain on the land or premises of another. R.C. 2901.01(A)(12) defines
“privilege” as “an immunity, license, or right conferred by law, bestowed
by express or implied grant, arising out of status, position, office, or
relationship, or growing out of necessity.”
{¶ 14} Mota contends that he was “privileged” to enter the home of Jerome M.
and Marion because he was acting on a warrant to arrest their son. In essence, he
maintains that his status as a bounty hunter grants him the privilege to enter the property
of third parties who are not subject to the warrant, and that such privilege defeats the
“trespasser” defense in R.C. 955.28(B). In support of his argument, Mota relies on
R.C. 2713.22, which provides: “For the purpose of surrendering the defendant, the bail
may arrest him at any time or place before he is finally charged, or, by a written
authority indorsed on a certified copy of the bond, may empower any person of suitable
age and discretion to do so.” (Emphasis added.)
{¶ 15} Initially, we note that no Ohio court has interpreted R.C. 2713.22 as
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providing carte blanche authority to a bounty hunter in pursuit of a fugitive to enter the
dwelling of a third party who is not a party to the bail contract. Indeed, we find only
one case that has even discussed R.C. 2713.22 since its passage in 1953—State v. Kole,
92 Ohio St.3d 303, 750 N.E.2d 148 (2001). In Kole, a bail-bond company contracted
with Kole, a bounty hunter, to apprehend a fugitive. Id. at 303. In the course of
pursuing the fugitive, Kole entered the residence of a third party without permission.
Id. at 304. Kole was subsequently indicted on several criminal offenses, including
abduction and burglary, related to his entry of the premises and was found guilty on all
counts. His conviction was upheld by the court of appeals. Id.
{¶ 16} At trial, Kole’s defense counsel relied on case law for the proposition that a
common-law defense existed for bounty hunters pursuing a fugitive, and that based on
this authority, Kole had an absolute privilege to enter the home of a third party. Id. at
305. Defense counsel, however, failed to cite or present R.C. 2713.22 as an alternative
theory in defending the charges. The Ohio Supreme Court found this to be ineffective
assistance of counsel and remanded the matter for a new trial. In doing so, however,
the Ohio Supreme Court expressly declined to hold that R.C. 2713.22 authorized a bail
bondsman as a matter of law to enter the home of a third party for purposes of
apprehending a fugitive when the third party is not a party to the bail contract. Id. at
308. The court specifically declined to recognize an “absolute privilege” to enter the
home of a third party. Instead, the Kole decision addressed the issue whether defense
counsel was ineffective in failing to argue R.C. 2713.22 as a statutory defense to the
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crimes charged.
{¶ 17} While we recognize that Kole may be instructive in cases where a bounty
hunter is facing criminal prosecution in connection with his pursuit of a fugitive, we do
not find it to be controlling in the present case. Notably, Mota is not relying on R.C.
2713.22 as a defense to a criminal prosecution or even as an excuse to avoid civil
liability. Instead, he seeks to use the statute for purposes of establishing a “privilege”
to defeat the “trespasser” defense in R.C. 955.28(B) and recover monetary damages.
We fail to find any support for such use of the statute. Nor do we believe that to be the
intended use of the statute.
{¶ 18} Indeed, like the trial court, we find that the statute, at best, operates to
provide a privilege to a bounty hunter as a shield from criminal or civil liability for a
criminal or civil trespass. It does not, however, operate to negate the bounty hunter’s
status as a trespasser or licensee as a means to give the bounty hunter an advantage in
the pursuit of recovering money damages. Such an allowance would be contrary to
well-established Ohio law—one cannot assert a privilege as both a shield and a sword.
See, e.g., Squire, Sanders, & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio
St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 41 (holding, in part, that “a client may
not rely on attorney-client communications to establish a claim against the attorney
while asserting the attorney-client privilege to prevent the attorney from rebutting that
claim”); Vandenhaute v. Filer, 8th Dist. No. 80405, 2002-Ohio-3640, 2002 WL
1587846, ¶ 9 (“Like all privileges, the physician-patient privilege is intended to be used
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as a shield of privacy, not a sword to escape liability or to otherwise gain an
advantage”).
{¶ 19} We find that the record demonstrates that Mota’s actions satisfy the
elements of criminal trespass as contemplated under R.C. 955.28(B). It is undisputed
that Mota entered Jerome M. and Marion’s premises without their consent. And
contrary to Mota’s assertion, R.C. 2713.22 does not provide a “privilege” to negate the
trespasser defense under R.C. 955.28(B). Accordingly, we find that the trial court
properly determined that Jerome M. and Marion could not be held strictly liable under
R.C. 955.28(B).
Common-Law Negligence
{¶ 20} Mota also argues that the trial court erred in granting summary judgment
on his common-law-negligence claim on the basis that it erroneously classified him as a
licensee for purpose of its negligence analysis. He contends that his position as a
bounty hunter required that he be afforded the same protections owed an invitee. We
disagree.
{¶ 21} The legal duty that landowners owe a person who enters their land depends
upon the status of the entrant, i.e., trespasser, licensee, or invitee. Gladon v. Greater
Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996).
“Invitees are persons who rightfully come upon the premises of another by invitation,
express or implied, for some purpose which is beneficial to the owner.” Id. In
contrast, a licensee is a person who enters another’s property “by permission or
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acquiescence, for his own pleasure or benefit, and not by invitation.” (Emphasis added.)
Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986).
{¶ 22} We find no basis to conclude that Mota was an invitee on the property.
The Ohio Supreme Court has consistently held that even police officers and firefighters
entering upon privately owned premises in the performance of their duties without an
express or implied invitation are licensees. See, e.g., Scheurer v. Trustees of Open
Bible Church, 175 Ohio St. 163, 192 N.E.2d 38 (1963), paragraph one of the syllabus;
Hack v. Gillespie, 74 Ohio St.3d 362, 658 N.E.2d 1046 (1996). There is absolutely no
support for the proposition that Mota, acting pursuant to an arrest warrant, falls within
the status of an invitee. Indeed, it is undisputed that the Gruszczynskis did not invite
Mota onto their property.
{¶ 23} Thus, even assuming that Mota was a licensee, the Gruszczynskis owed
Mota the same duty owed to a trespasser: “to refrain from willful, wanton or reckless
conduct [that] is likely to injure him.” Gladon, 75 Ohio St.3d at 317, 662 N.E.2d 287,
citing Soles v. Ohio Edison Co., 144 Ohio St. 373, 59 N.E.2d 138 (1945), paragraph one
of the syllabus. And based on the status of a licensee, we find that the trial court
properly determined as a matter of law that the “Gruszczynskis’ act of permitting the
dog to remain in the enclosed, screened-in porch after giving birth to her puppies is not
the kind of willful, wanton, or reckless conduct that is likely to injure a third person.”
Accordingly, we find no error in the trial court’s granting of summary judgment on this
claim.
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Loss-of-Consortium Claim
{¶ 24} Lastly, Bryn Mota argues that the trial court erroneously granted summary
judgment on her loss-of-consortium claim after finding that it was derivative to Mota’s
negligence and strict-liability claims and that those two claims had no merit. Having
already determined that the trial court properly granted summary judgment on those
claims, we likewise find that Bryn Mota’s loss-of-consortium claim fails as a matter of
law. See Bowen v. Kil-Kare, Inc., 63 Ohio St.3d 84, 585 N.E.2d 384 (1992) (if the
underlying tort claim fails on the merits, so does the loss-of-consortium claim).
{¶ 25} The sole assignment of error is overruled.
Judgment affirmed.
COONEY, J., and ROCCO, J., concur.