The Supreme Court of Ohio has ruled that a dog bite victim may pursue claims under both the state’s dog bite statute (R.C. 955.28) and a hybrid of the scienter and negligence causes of action, which the court calls “common law negligence.” In a case which involved the canine-inflicted scalping of a little girl, the insurance company for the dog owners had convinced the trial judge that the dog bite victim had to choose between these two remedies, which lead to different measures of legally-awardable damages. The court clarified that both legal theories can be pursued in the same court case.
Unfortunately the court failed to take the opportunity to untangle the dog bite law itself. Ohio’s scienter-negligence hybrid conflates (or “tangles”) the requirements of the common law or scienter cause of action with the general negligence cause of action. The hybrid requires proof of the following elements: (1) the defendant owned or harbored the dog, (2) the dog was vicious, (3) the defendant knew of the dog’s viciousness, and (4) the dog was kept in a negligent manner after the keeper knew of its viciousness.
On a positive note, the court ruled that punitive damages may be awarded in the hybrid action. As a result, dog bite victims in Ohio have a greater chance at recovering not only compensatory damages such as medical bills and pain and suffering, but also punitive damages in cases of egregious conduct on the part of the defendant.