Morris v. Cordell , 2015 Ohio 4342 ( 2015 )

[Cite as Morris v. Cordell, 2015-Ohio-4342.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
DAVID R. MORRIS, : APPEAL NO. C-150081
TRIAL NO. A-1306197
Plaintiff-Appellant, :
O P I N I O N.
vs. :
KRISTI R. CORDELL, :
Defendant, :
and :
DEBRA M. LANG, :
and :
MARSHALL LANG, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 21, 2015
Robbins, Kelly, Patterson & Tucker, Daniel J. Temming and Robert M. Ernst, for
Plaintiff-Appellant,
Eagen & Wykoff Co., LPA, and John R. Wykoff, for Defendants-Appellees.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S TAUTBERG , Judge.
{¶1} Plaintiff-appellant David Morris appeals the trial court’s decision
granting summary judgment in favor of defendants-appellees Debra and Marshall
Lang. In his sole assignment of error, Morris argues the trial court erred in granting
summary judgment to the Langs. We affirm the trial court’s judgment.
{¶2} The record shows that Morris alleges he was walking on Mantell Avenue
with his grandchildren and his dog, which was on a leash, when another dog named
Sherman darted out of the house at 3839 Mantell Avenue. Sherman ran over to Morris’s
dog and the two dogs began wrestling. As a result, Morris fell and injured his knee,
necessitating surgery.
{¶3} Kristi Cordell testified in her deposition that she owns Sherman. She
lives in the 3839 Mantell Avenue house with her two children, as well as Sherman and a
second dog. The Langs, who are Cordell’s aunt and uncle, own the Mantell Avenue
house. They had purchased the house for Cordell and her children to live in after she
had suffered severe financial hardship.
{¶4} Although there was no written lease, the Langs and Cordell had an oral
agreement for Cordell to pay $600 per month for rent, plus all utilities. Cordell did pay
rent for a time, but stopped paying at some point prior to this incident. She did pay the
utilities. Cordell took care of the property generally, performing such tasks as shoveling
snow. She paid for grass cutting and for routine furnace and air-conditioning service.
The Langs paid the real estate taxes as well as major repair items.
{¶5} The Langs lived a few miles away from the Mantell Avenue property.
They frequently visited the property, however, principally to assist Cordell with her
children and dogs when Cordell was working. The Langs stated that they only entered
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OHIO FIRST DISTRICT COURT OF APPEALS
the house with Cordell’s permission. When Cordell knew they were coming, she would
leave the door open for them or her children would open the door.
{¶6} Morris filed a complaint against Cordell and the Langs seeking to recover
damages for his injury. In his complaint, he alleged that Cordell and the Langs were,
individually or collectively, owners or harborers of the dog. The Langs filed a motion for
summary judgment in which they argued that they were not owners, keepers or
harborers of the dog under R.C. 955.28. The trial court granted the motion for summary
judgment. Subsequently, Morris voluntarily dismissed his claims against Cordell. This
appeal followed.
{¶7} In his sole assignment of error, Morris contends that the trial court erred
in granting summary judgment in favor of the Langs. He argues that issues of fact exist
as to whether the Langs were owners, keepers or harborers of the dog. This assignment
of error is not well taken.
{¶8} An appellate court reviews a trial court’s ruling on a motion for summary
judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241
(1996); Evans v. Thrasher, 1st Dist. Hamilton No. C-120783, 2013-Ohio-4776, ¶ 25.
Summary judgment is appropriate if (1) no genuine issue of material fact exists for trial,
(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 moving party, who
is entitled to have the evidence construed most strongly in his or her favor. Temple v.
Wean United, Inc., 50 Ohio St. 2d 317, 327, 364 N.E.2d 267 (1977); Evans at ¶ 25.
{¶9} Revised Code section 955.28 states that “[t]he 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 * * * .” It imposes strict liability for any damage or injury caused by
the dog. Warner v. Wolfe, 176 Ohio St. 389, 392, 199 N.E.2d 860 (1964); Ohio Cas. Ins.
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OHIO FIRST DISTRICT COURT OF APPEALS
Co. v. Robison, 5 Ohio App. 3d 223, 224, 451 N.E.2d 253 (2d Dist.1982). The record
shows that Cordell owns the dog. Morris questions her ownership, because the dog is
not registered with the county auditor, but the record contains no evidence that the
Langs owned the dog. Consequently, the Langs do not meet the definition of an owner.
In addition, the Langs were not present or in the vicinity at the time of the incident, so
they are not considered keepers of the dog. See Buettner v. Beasley, 8th Dist. Cuyahoga
No. 83271, 2004-Ohio-1909, ¶ 14. Therefore, their liability hinged on whether they were
harborers of the dog.
{¶10} In determining whether a particular person harbors a dog, “the focus
shifts from possession and control over the dog to possession and control of the
premises where the dog lives.” Jones v. Goodwin, 1st Dist. Hamilton No. C-050468,
2006-Ohio-1377, ¶ 6, quoting Flint v. Holbrook, 80 Ohio App. 3d 21, 25, 608 N.E.2d 809
(2d Dist.1992). A person who is in control of the premises where a dog lives and silently
acquiesces in the dog being kept there by the owner can be held liable as a harborer of
the dog. Jones at ¶ 6; Flint at 25.
{¶11} Generally, a landlord will not held responsible for injury caused by a
tenant’s dog so long as the tenant is in exclusive possession and control of the premises.
Good v. Murd, 6th Dist. Lucas No. L-13-1235, 2014-Ohio-2216, ¶ 10; Kovacks v. Lewis,
5th Dist. Tuscarawas No. 2010 AP 01 0001, 2010-Ohio-3230, ¶ 28; Jones at ¶ 6. Absent
a contrary agreement, a lease agreement transfers both the possession and control of the
premises to the tenant. Good at ¶ 10; Kovacks at ¶ 28. The hallmark of control is the
ability to admit or exclude others from the property. Pangallo v. Adkins, 12th Dist.
Clermont No. CA2014-02-019, 2014-Ohio-3082, ¶ 15; Kovacks at ¶ 27. If the leased
premises consists of a single-family home, a presumption exists that the tenant
possesses and controls the entire property. Richeson v. Leist, 12th Dist. Warren No.
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OHIO FIRST DISTRICT COURT OF APPEALS
CA2006-11-138, 2007-Ohio-3610, ¶ 13; Engwert-Loyd v. Ramirez, 6th Dist. Lucas No.
L-06-1084, 2006-Ohio-5468, ¶ 11.
{¶12} In this case, Morris did not present evidence to rebut the presumption
that Cordell had possession and control of the property. The Langs both testified that
they did not have keys to the property. When asked why, Debra Lang stated, “It’s not
our house. * * * I don’t live there.” Though the Langs went over to watch Cordell’s
children or let the dogs out, they used a door that was left open or someone let them in.
The Langs also testified that they assisted at the house only with Cordell’s knowledge
and permission. The ability to let themselves in the house with Cordell’s permission did
not constitute the control necessary for liability to attach. See Kovacks at ¶ 34.
{¶13} Morris argues that this case does not involve a “true” landlord-tenant
relationship. He argues that the familial situation, the lack of a written contract, the
failure to pay rent for several months, and the Langs’ active assistance in taking care of
the property, Cordell’s children, and the dogs showed that they had possession and
control of the property. We disagree.
{¶14} A rental agreement means “any agreement or lease, written or oral, which
establishes or modifies the terms, conditions, rules, or any other provisions concerning
the use and occupancy of residential premises by one of the parties.” R.C. 5321.01(D). A
landlord-tenant relationship can exist under an oral agreement, even when the tenant
does not pay rent. Ramsdell v. Ramsdell, 6th Dist. Lucas No. L-12-1113, 2013-Ohio-409,
¶ 14-15; Tucker v. Kanzios, 9th Dist. Lorain No. 08CA009429, 2009-Ohio-2788, ¶ 21.
Further, routine and common acts conducted by a landlord, such as making repairs,
paying taxes, insuring the structure, and the like, do not constitute the control necessary
to establish liability. Richeson, 12th Dist. Warren No. CA2006-11-138, 2007-Ohio-3610,
at ¶ 15.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Morris relies on Godsey v. Franz, 6th Dist. Williams No.
91WM000008, 1992 Ohio App. LEXIS 1087 (Mar. 13, 1992). In that case, the court
found the owner of a house and farm liable for being a “harborer” of his son’s dog,
even though the property owner lived in a house on an abutting farm. The son lived
on a 100-acre farm owned by his father and helped his father farm the property. The
son occupied a house on the farm with no written lease or obligation to pay rent, but
he maintained the house and its immediate surroundings.
{¶16} The father owned not only the farm on which his son lived, but also an
abutting farm. The father maintained the other buildings on both farms, which
included the father’s house, a barn and some outbuildings where equipment was
kept. He stated that he felt free to go the house where his son and his son’s wife
lived, because he owned it. He further stated that his son’s eight dogs were “free to
run back and forth from house to house and farm to farm * * * .” Id. at *5. The court
found that the father fit the definition of a harborer of the dog under those
circumstances, because he acquiesced or permitted the dogs to be in common or
shared areas of the farms. Id. at *12. See also Hill v. Hughes, 4th Dist. Ross No.
06CA2917, 2007-Ohio-3885, ¶ 17-21.
{¶17} The present case is distinguishable, because it does not involve
common areas. Generally, a common area is an area over which multiple people
have possession and control. Engwert-Loyd, 6th Dist. Lucas No. L-06-1084, 2006-
Ohio-5468, at ¶ 11. The record shows that there were no common or shared areas
used or occupied by both Cordell and the Langs. This case involves a single-family
house and yard. Morris failed to overcome the presumption that Cordell had
exclusive control and possession of the property. “[A] landlord cannot be a harborer
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OHIO FIRST DISTRICT COURT OF APPEALS
of a dog that is kept on the premises the tenant has sole control over.” Jones, 1st
Dist. Hamilton No. C-050468, 2006-Ohio-1377, at ¶ 6.
{¶18} No material issues of fact exist. Construing the evidence most strongly
in Morris’s favor, reasonable minds could come to but one conclusion—that the
Langs were not harborers of the dog. Therefore, they were entitled to judgment as a
matter of law, and the trial court did not err in granting their motion for summary
judgment. We overrule Morris’s sole assignment of error and affirm the trial court’s
judgment.
Judgment affirmed.
H ENDON , P.J., and M OCK , J., concur.
Please note:
The court has recorded its own entry this date.
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