Lopiccolo v. Vidal

[Cite as Lopiccolo v. Vidal, 2012-Ohio-4048.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97150
ROSE MARY LOPICCOLO
PLAINTIFF-APPELLANT
vs.
CARLOS VIDAL, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-726137
BEFORE: Belfance, J., Whitmore, P.J., and Moore, J.*
(*Sitting by assignment: Judges of the Ninth District Court of Appeals)
RELEASED AND JOURNALIZED: September 6, 2012
[Cite as Lopiccolo v. Vidal, 2012-Ohio-4048.]
ATTORNEY FOR APPELLANT
Samuel V. Butcher
12001 Prospect Road
Suite A-1
Strongsville, OH 44149
ATTORNEY FOR APPELLEES
Stephen C. Merriam
Law Office of Stephen J. Proe
7123 Pearl Road
Suite 304
Middleburg Heights, OH 44130
[Cite as Lopiccolo v. Vidal, 2012-Ohio-4048.]
EVE V. BELFANCE, J.:
{¶1} Rose Lopiccolo appeals the trial court’s award of summary
judgment to Radojoe and Lubinka Nikolic. For the reasons set forth below,
we affirm.
{¶2} Ms. Lopiccolo was watering the plants in her backyard when two
dogs attacked her. She fended off the dogs but not before the dogs had bitten
her. An investigation revealed that the two dogs allegedly belonged to the
son of Ms. Lopiccolo’s neighbor Tonya Vidal. Ms. Vidal rented the house next
door to Ms. Lopiccolo from the Nikolics with her fiancé Jeff Russell.
{¶3} Ms. Lopiccolo subsequently filed a complaint against the Nikolics,
Mr. Russell, Ms. Vidal, and her son, as well as against the girlfriend of Ms.
Vidal’s son and his girlfriend’s father. Following discovery, the Nikolics
moved for summary judgment, which the trial court granted on the basis that
the Nikolics were not the owners, keepers, or harborers of the dogs.
{¶4} Ms. Lopiccolo has appealed, raising a single assignment of error for
our review:
ASSIGNMENT OF ERROR
The trial court erred in finding plaintiff, Rose Mary Lopiccolo,
unable to meet her burden for both strict liability under Ohio’s
dog bite statute, O.R.C. 955.28(B), and her common law claim as
to the liability of the defendant landlords, Radojoe Nikolic and
Lubinka Nikolic, for injuries occurring as the result of a vicious
dog bite attack, and in thus granting defendants’ motion for
summary judgment.
{¶5} Ms. Lopiccolo argues that there is a genuine issue whether the
Nikolics “knew or should have known” that the dogs that attacked her were
on their property and, therefore, there is a genuine issue of material fact
whether the Nikolics harbored the dogs. Thus, she argues, the award of
summary judgment was improper.
{¶6} A trial court’s award of summary judgment is reviewed de novo.
Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996); Zemcik v. LaPine
Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585 (8th Dist.1998). In
Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367 (1998), the Ohio
Supreme Court set forth the appropriate test as follows:
Pursuant to Civ.R. 56, summary judgment is appropriate when
(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 nonmoving party, said party being entitled to have
the evidence construed most strongly in his favor. Horton v.
Harwick Chem. Corp. [ ], 73 Ohio St.3d 679 [(1995)], paragraph
three of the syllabus. The party moving for summary judgment
bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of
law. Dresher v. Burt [ ], 75 Ohio St.3d 280, 292-293 [(1996)].
Id. at 369-370.
{¶7} Once the moving party satisfies its burden, the nonmoving party
“may not rest upon the mere allegations or denials of the party’s pleadings,
but the party’s response, by affidavit or as otherwise provided in this rule
must set forth specific facts showing that there is a genuine issue for trial.”
Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996). Doubts
must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg,
65 Ohio St.3d 356, 358-359 (1992).
{¶8} Ms. Lopiccolo makes a very limited argument on appeal. She
argues that summary judgment was inappropriate because there was a
genuine issue of fact whether the Nikolics knew or should have known that
the dogs were being kept on the property, which, according to her, would
make them harborers of the dogs for the purposes of R.C. 955.28(B) and
common-law negligence. “[A] harborer is one who has possession and control
of the premises where the dog lives, and silently acquiesces to the dog’s
presence.” (Internal quotations and citations omitted.) Burrell v. Iwenofu,
8th Dist. No. 81230, 2003-Ohio-1158,
¶ 14. However, it is undisputed that the Nikolics leased the property to Ms.
Vidal and Mr. Russell, and “the determination as to whether a landlord is a
harborer does not depend upon whether the landlord knew about the
existence of the dog, but depends on whether the landlord permitted or
acquiesced in the tenant’s dog being kept in common areas or in an area
shared by both the landlord and the tenant.” Burgess v. Tackas, 125 Ohio
App.3d 294, 297 (8th Dist.1998). This is because “a lease transfers both
possession and control of the leased premises to the tenant.” Id. at 297-298.
See also Burrell at ¶ 15.
{¶9} Nothing in the record could support the conclusion that the dogs
were kept in a common area of the property because Ms. Vidal and Mr.
Russell leased the entire single-family lot. Thus, regardless of whether the
Nikolics knew or should have known that the dogs were on the property, they
could not be harborers of the dog under Eighth District jurisprudence because
they did not have possession and control of the property. See Burgess at
297-298 (A trailer park entity is not liable under R.C. 955.28(B) or the
common-law, regardless of knowledge of the dog’s presence, unless the attack
happened in a common area.) See also Burrell at ¶ 15, 17. Accordingly,
based on Mr. Lopiccolo’s limited argument on appeal, her assignment of error
is overruled.
{¶10} Ms. Lopiccolo’s assignment of error is overruled. The judgment
of the Cuyahoga County Court of Common Pleas is affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________
EVE V. BELFANCE, JUDGE
BETH WHITMORE, P.J., and
CARLA MOORE, J., CONCUR