Purcell v. Stemen , 2023 Ohio 4086 ( 2023 )

[Cite as Purcell v. Stemen, 2023-Ohio-4086.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
MONICA A. PURCELL, ET AL.,
CASE NO. 1-23-28
PLAINTIFFS-APPELLANTS,
v.
GENE W. STEMEN, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2020 0377
Judgment Affirmed
Date of Decision: November 13, 2023
APPEARANCES:
Matthew H. Huffman and T. Blain Brock for Appellants
Dalton J. Smith for Appellees
Case No. 1-23-28
MILLER, P.J.
{¶1} Plaintiffs-appellants, Monica A. Purcell (“Monica”) and Keith A.
Purcell, appeal the trial court’s decision to grant, in part, summary judgment to
Defendants-appellees, Gene W. Stemen (“Stemen”) and Amber Tickle (“Tickle”).
This case arises from an incident in which a dog owned by Tickle bit Monica. The
trial court’s decision resulted in dismissal of Appellants’ claim for strict liability
under R.C. 955.28. Appellants argue the trial court erred in finding, under R.C.
955.28, Monica was the “keeper” of the dog that bit her and, therefore, is barred
from recovering under the statute. For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} In April of 2019, Appellees were in a relationship and decided to take
a vacation to Florida. Tickle owned a dog named Zeus, a pitbull boxer mixed breed.
Appellees did not bring Zeus to Florida but, instead, decided to chain Zeus in
Stemen’s backyard—which had no fence—for the duration of their vacation.
Appellees chained Zeus to a long concrete stake that Stemen hammered into the
ground. Stemen placed food and water dishes, along with a doghouse, in his
backyard for Zeus. Stemen testified he also arranged for a co-worker to stop by his
house in order to give Zeus food and water and check on the dog’s wellbeing while
Appellees were on vacation.
{¶3} Appellants lived next door to Stemen. Monica testified that she and her
husband Keith were (and remain) friends with Stemen. The day before Appellees
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left for Florida, Monica went over to Stemen’s property, where Stemen told her they
would be going on vacation and Zeus would stay chained up in his backyard. This
is when Monica first saw Zeus, who at that time was in a reinforced cage, barking
and growling. Monica testified that Stemen told her one of his co-workers was
going to be checking on the dog every day. Monica also testified she had owned
and trained dogs for a long time. However, Appellees never asked Monica to watch
or care for Zeus, and Monica never offered to watch or care for Zeus.
{¶4} On April 16, 2019, approximately six days after Appellees had left for
Florida, Monica’s visiting relatives informed her there was a pitbull loose in front
of her house. She went outside and discovered that Zeus’ chain had come undone
from the concrete stake in Stemen’s backyard and Zeus had entered her yard,
dragging the entire chain from his collar. She went back into her house, grabbed a
gun for protection purposes in case Zeus were to attack, and headed back outside.
Without incident, she was able to walk Zeus back to Stemen’s yard. She secured
the dog by chaining Zeus to the stake, where the dog had previously been chained.
Soon thereafter, Monica provided Zeus with food and water from her own home
and, to ensure the dog could reach everything, moved Zeus from being chained to
the concrete stake to instead being chained to a porch post at Stemen’s house. Later
that same day, Monica returned to Stemen’s yard and gave Zeus food another time.
Once again, she had no issues with Zeus.
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{¶5} The next day, Monica decided to check on Zeus again. She went to
Stemen’s backyard and noticed that, although Zeus remained secured on the chain,
the chain was caught on a stone in the yard. Monica decided to move the stone to
free the chain. However, as she went to move the stone, Zeus attacked her. Monica
raised her arm to defend herself, and Zeus bit her hand, wrist, and forearm. She was
able to free her bleeding arm from Zeus’ grip and get to the hospital, where testing
revealed she had suffered nerve damage. She underwent treatment for her injuries.
{¶6} Appellants then brought this lawsuit, claiming strict liability under R.C.
955.28, negligence, punitive damages, and loss of consortium. Eventually,
Appellees moved for summary judgment on all claims, and Appellants moved for
partial summary judgment on the issue of strict liability.
{¶7} The trial court granted, in part, Appellees’ motion, dismissing
Appellants’ claim for strict liability. However, Appellants’ negligence-based
claims remained. The trial court found “there [was] no just cause for delay pursuant
to Ohio Civ.R. 54(B)” and this appeal was instituted.
II. ASSIGNMENT OF ERROR
{¶8} Appellants raise a single assignment of error for our review:
Assignment of Error
The trial court erred, as a matter of law, by holding that Plaintiff-
Appellant Monica Purcell was the dog’s “keeper” under the Ohio dog-
bite statute [Decisions Dated March 16, 2023 and April 26, 2023]
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III. DISCUSSION
{¶9} In their assignment of error, Appellants argue the trial court’s
determination that Monica was the dog’s “keeper” under R.C. 955.28(B) at the time
of the injury is inconsistent with Ohio caselaw and creates an entirely new class of
individuals that will be considered “keepers” under the dog-bite statute. We
disagree.
A. Standard of Review
{¶10} “When reviewing the decision of a trial court granting or denying a
party’s motion for summary judgment, an appellate court applies a de novo standard
of review.” Smathers v. Glass, ___ Ohio St.3d ___, 2022-Ohio-4595, ¶ 30. “The
appellate court conducts an independent review of the evidence without deference
to the trial court’s findings.” Id. We examine the evidence available in the record,
including deposition or hearing transcripts, answers to interrogatories, written
admissions, affidavits, written stipulations of fact, stipulated exhibits, and the
pleadings, and “determine[], as if [we] were the trial court, whether summary
judgment is appropriate” pursuant to Civ.R. 56. Id.; see also Civ.R. 56(C). “[A]ny
inferences regarding the evidence, including the resolution of ambiguities or
inconsistencies, must be made in a manner that favors the nonmoving party.”
Smathers at ¶ 32. Ultimately,
[t]o prevail under Civ.R. 56, the party moving for summary judgment
must show the following: ‘(1) there is no genuine issue of material
fact; (2) the moving party is entitled to judgment as a matter of law;
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and (3) it appears from the evidence that reasonable minds can come
to but one conclusion when viewing evidence in favor of the
nonmoving party, and that conclusion is adverse to the nonmoving
party.’
Id. at ¶ 31, quoting Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d
241 (1996); see also Civ.R. 56(C).
B. Applicable Law
{¶11} The statute at issue, R.C. 955.28(B), imposes strict liability against
particular categories of people for injuries caused by a dog, subject to certain
exceptions not at issue in this appeal. It states, in relevant part:
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. * * *
R.C. 955.28(B). The statute is to be strictly construed. Pulley v. Malek, 25 Ohio
St.3d 95, 97, 495 N.E.2d 402 (1986). Also, “[a]ssumption of the risk is not a
permissible defense to an action” brought pursuant to the statute. Id. at syllabus.
{¶12} This Court has held that a person who is a dog’s “keeper” is barred
from recovering under R.C. 955.28(B) for damages proximately caused by that dog.
Johnson v. Allonas, 116 Ohio App.3d 447, 450, 688 N.E.2d 549 (3d Dist.1996)
(explaining that a “keeper” of a dog under R.C. 955.28(B) cannot avail himself or
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herself of the protections afforded by the statute); see also Khamis v. Everson, 88
Ohio App.3d 220, 227, 623 N.E.2d 683 (2d Dist.1993) (“a ‘keeper’ is not within the
class of people that the legislature intended to protect by enacting the strict liability
provision contained in R.C. 955.28(B)”); Lewis v. Chovan, 10th Dist. Franklin No.
05AP-1159, 2006-Ohio-3100, ¶ 10 (“Ohio courts have held that an injured ‘keeper’
cannot avail herself of the protections afforded by R.C. 955.28(B)”). However, it is
possible “‘keepers’ or ‘harborers’ of dogs that proximately cause injury to them still
have a common-law cause of action against the dog’s owner.” Khamis at 227.
{¶13} The term “keeper” is not statutorily defined. However, this Court has
held that a dog’s “keeper” is “the person in physical charge or care of the dog at the
time of the accident.” Johnson at 449, citing Garrard v. McComas, 5 Ohio App.3d
179, 182, 450 N.E.2d 730 (10th Dist.1982); see also Schultz v. State, 32 Ohio St.
276, 281 (1877) (“[t]he word ‘keeper’ is defined to be one who has the care, custody,
or superintendence of anything”); Black’s Law Dictionary (11th Ed.2019) (defining
“keeper” as “[s]omeone who has the care, custody, or management of something
and who usu. is legally responsible for it <a dog’s keeper> <a keeper of lost
property>”).1
1
Curiously, some courts have cited Garrard as providing the definition of “keeper” under the statute, yet left
out the “care” portion of the definition. See, e.g., Flint v. Holbrook, 80 Ohio App.3d 21, 25, 608 N.E.2d 809(2d Dist.1992) (citing Garrard, but stating that “[a]n owner is the person to whom a dog belongs, while a
keeper has physical control over the dog”); Khamis, 88 Ohio App.3d at 226 (quoting Flint’s definition, but
also citing Garrard). We note that those cases did not require the determination of whether the plaintiff was
the dog’s “keeper.” Flint at 26 (involving whether defendant was a “harborer” under the statute); Khamis at
223 (“appellant does not challenge the trial court’s finding that appellant was a ‘keeper’ within the meaning
of R.C. 955.28”).
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{¶14} Designation as the dog’s “keeper” can be fluid, changing with the
circumstances. In other words, a person can become the dog’s “keeper” for a period
of time and then no longer be deemed the dog’s “keeper,” depending on the
situation.2 See Lewis, 2006-Ohio-3100, at ¶ 12 (“courts in Ohio have found a person
to be a keeper even when the physical charge or care of the dog is only temporary”);
Chester v. Lima Corr. Inst., Ct. of Cl. No. 2003-01091-AD, 2003-Ohio-3892, ¶ 1,
4, 31 (plaintiff-inmate, who was bitten while pulling the dog away from another
tethered dog during a dog training program after plaintiff had put the dog on a leash
and fastened the leash to a metal bolt, was the dog’s “keeper” at the time he was
bitten).
C. Analysis
{¶15} Given this background, the limited question we must decide is whether
Monica was Zeus’ “keeper” under R.C. 955.28(B) at the time Zeus bit her. The
material facts relevant to this issue are undisputed. Applying those facts to the law
discussed above, a reasonable jury could only conclude that Monica was Zeus’
“keeper” under the statute at the time the dog bit her.
{¶16} The day before the bite, after Zeus had gotten loose and been found in
her yard, Monica brought Zeus back to Stemen’s yard and secured Zeus back to
where the dog had been located. Then she provided Zeus with food and water from
2
Of course, a person can likewise become a dog’s “owner,” then sell the dog to another person and no longer
be its “owner.”
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her own home, and she established a new perimeter for the dog’s restricted
movement by changing where Zeus had been chained (the stake) to a new location
(the post at Stemen’s house). Later that same day, she checked on Zeus again,
returning to Stemen’s yard and giving the dog food another time. The next day,
Monica continued to watch over Zeus, checking on the dog once again and returning
to Stemen’s yard to find Zeus’ chain—which Monica had previously moved by
securing it to a different place—had become caught on a stone. It was at this time,
while Monica continued to ensure the dog’s care and attempted to reestablish the
full perimeter she had set for Zeus by freeing his chain from the stone, when Zeus
bit her. Thus, on multiple occasions over a couple of days when the dog’s owner
was continuously not present, Monica gave Zeus food and water and took other
efforts to ensure Zeus’ wellbeing. Importantly, the interaction when Zeus bit
Monica was not the initial interaction that involved her checking on and caring for
the dog that ended up biting her.
{¶17} During her deposition, Monica acknowledged she had been caring for
Zeus, and she testified she did so because she is a “[d]og lover” who “want[s] to
make sure they’re taken care of.” (M. Purcell Dep. Tr. at 86-87, 90). She also
acknowledged she “didn’t have to care for the dog” but instead could have ignored
the dog, contacted the dog warden, contacted the police, or contacted Stemen. (Id.
at 90). She also testified that “everything [she] did was over [her] concern for the
welfare of the dog,” even though Stemen never asked her to take care of Zeus. (Id.
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at 86-87, 90). In other words, she acknowledged the purpose of her interactions
with Zeus was to care for the dog when she believed no one else was doing so. It
does not matter whether Appellees asked Monica to take care of Zeus or that Monica
never offered to take care of Zeus. See, e.g., Johnson, 116 Ohio App.3d at 448 (no
dispute that plaintiff was the dog’s “keeper” at the time of the accident, despite not
being asked to take physical charge or care for the dog, where plaintiff let herself
into the dog owner’s house, noticed the dog wanted to go outside, leashed the dog,
and took it outside); Lewis, 2006-Ohio-3100, at ¶ 13 (rejecting appellant’s argument
that, because “she was not specifically charged with grooming” the dog, a jury
question existed regarding whether she was its “keeper”). Moreover, nothing in the
statute’s language indicates a requirement that a person be asked (or ask) to be in
physical charge or care of the dog in order to become its “keeper.” See R.C.
955.28(B).
{¶18} At the least, Monica was actively caring for the dog at the time of her
injury. Monica’s actions are sufficient to find she was Zeus’ “keeper” when the dog
bit her. Johnson, 116 Ohio App.3d at 449 (a “keeper” is “the person in physical
charge or care of the dog at the time of the accident” [emphasis added]). Therefore,
she is barred from recovering under R.C. 955.28. Id. at 450. There is no genuine
issue of material fact, it appears from the evidence that reasonable minds can only
conclude that Monica was the dog’s “keeper” under R.C. 955.28 (even when
viewing the evidence in favor of Appellants), and, therefore, Appellees are entitled
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to judgment as a matter of law on the strict liability claim. Civ.R. 56. We affirm
the trial court’s decision to grant Appellees summary judgment on the Appellants’
strict liability claim. Johnson, 116 Ohio App.3d at 448-51 (affirming summary
judgment for defendant on plaintiff-keeper’s strict liability claim under R.C.
955.28); Lewis, 2006-Ohio-3100, at ¶ 5, 11-14, 19 (same).
IV. CONCLUSION
{¶19} For the foregoing reasons, Appellants’ assignment of error is
overruled. Having found no error prejudicial to the appellants in the particulars
assigned and argued, we affirm the judgment of the Allen County Court of Common
Pleas.
Judgment Affirmed.
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/hls
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