Ohio Dog Bite Law

A dog bite victim in Ohio can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort. Ohio is a strict liability state that makes a dog owner, harborer, or keeper liable for an injury to a person or the property of a person, including a person’s dog.

The one-bite rule

A dog bite victim in Ohio can recover compensation under the doctrine of “scienter” (the Latin word for “knowingly”), also referred to as “common law strict liability,” “the first bite free rule,” and “the one bite rule.” As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer, or keeper of a dog if (a) the dog previously bit a person or acted like it wanted to and (b) the defendant was aware of the dog’s previous conduct. If a harborer, or keeper of a dog knows its vicious nature, liability for a bite will attach without owning either the dog or the premises where the dog is kept. Hayes v. Smith (1900), 62 Ohio St. 161, 163, 56 N.E. 879, 882. This is because “[u]nder common law, “* * * the gist of the action for injury by a dog known by its owner to be vicious is generally said to be not negligence in the manner of keeping the dog, but for keeping it at all.” Warner v. Wolfe, supra, 176 Ohio St. at 392, 27 O.O.2d at 358, 199 N.E.2d at 862. However, without proof that the dog bit someone in the past without legal justification, or tried to do so, and that the owner, harborer, or keeper knew of it, the victim cannot base his or her case on the doctrine of scienter. For more information, see The One Bite Rule.

Statutory liability

The majority of American states have supplemented the one-bite rule with statutes that make dog owners responsible for all bites including the first one. These so-called “dog bite statutes” sometimes extend to people other than dog owners and injuries other than dog bites. These states also impose liability on dog owners and others the doctrines of negligence, premises liability, nuisance, and negligence per se for a violation of an animal control law such as a leash law, a law prohibiting dogs from being at large, or a law prohibiting dogs from trespassing. So if the elements of the one-bite rule or any other doctrine cannot be proved, another doctrine might support a victim’s claim for compensation. See generally Legal Rights of Dog Bite Victims in the USA.

Ohio is a state that supplements the scienter cause of action with a dog bite statute. The state, therefore, is classified as a statutory strict liability state. Its dog bite statute makes a dog owner, harborer, or keeper liable whenever his dog injures, bites, or causes a loss to a person or to the property of a person (meaning a person’s dog or any other property of a person), even the first time. Here is the text of the statute:

Ohio Revised Codes, § 955.28 Dog may be killed for certain acts; owner liable for damages.

(A) Subject to divisions (A)(2) and (3) of section 955.261 of the Revised Code, a dog that is chasing or approaching in a menacing fashion or apparent attitude of attack, that attempts to bite or otherwise endanger, or that kills or injures a person or a dog that chases, threatens, harasses, injures, or kills livestock, poultry, other domestic animal, or other animal, that is the property of another person, except a cat or another dog, can be killed at the time of that chasing, threatening, harassment, approaching, attempt, killing, or injury. If, in attempting to kill such a dog, a person wounds it, the person is not liable to prosecution under the penal laws that punish cruelty to animals. Nothing in this section precludes a law enforcement officer from killing a dog that attacks a police dog as defined in section 2921.321 of the Revised Code.

(B) 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.

The cases have provided definitions of these key terms:

  • An owner is a person to whom the dog belongs. Garrard v. McComas (1982), 5 Ohio App.3d 179, 182.
  • A keeper is a person who has physical charge or care of the dog. Garrard v. McComas (1982), 5 Ohio App.3d 179, 182. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25, 608 N.E.2d 809. In Johnson v. Allonas (Ohio App. Third Dist., 1996) 116 Ohio App. 3d 447, the victim was nothing but a visitor to the house who took the dog outside to relieve itself. The dog bit her. The court ruled that she was a “keeper” of the dog because she was in physical charge of it when the incident happened. In Marin v. Frick, 2004 -Ohio- 5642 (Ohio App. Dist.11 10/22/2004) a friend of the family went for a walk with a family member and, on that walk, was asked to hold the dog’s leash while the family member went to the restroom; the friend was held to be a “keeper” of the dog and therefore was barred from recovery under the statute.
  • “[A] harborer is one who has possession and control of the premises where the dog lives and silently acquiesces to the dog’s presence.” Flint v. Holbrook (Ohio Ct. App. 1992) 80 Ohio App. 3d 21, 25. A landlord becomes a harborer by allowing a dog to be in the “common areas” of the property. (“A landlord’s liability as a harborer for injuries inflicted by a tenant’s dog would depend upon whether he permitted the tenant’s dog in common areas. ” Flint v. Holbrook (Ohio Ct. App. 1992) 80 Ohio App. 3d 21, 25.) “A wife may be the harborer of a dog owned by her husband. But, of course, that liability does not arise by reason of the relation of husband and wife, but because of the conduct of the wife in relation to the dog. Evidence of that conduct is, therefore, relevant on the issue of whether she had harbored the dog.” McIntosh v. Doddy (Ohio Ct. App. 1947) 81 Ohio App. 351, 359.

However, the statute does not apply if the victim was trespassing, attempting to commit a crime, or teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property. It also does not apply if the victim was the dog’s owner, keeper, or harborer. Krzywicki v. Gallett (2015) 2015 Ohio 312. In Beuttner v. Beasley (Ohio App. Eight Dist., Cuyahoga, 04-15-2004) Number 83271, 2004-Ohio-1909, 2004 WL 813515, the Eight Appellate District for Cuyahoga County held that a woman whose boyfriend’s dog bit her face would not be entitled to recover against the boyfriend for the dog’s action where the woman lived with the boyfriend, and cared for the dog on a daily basis. In a similar case, another Ohio court ruled that merely living with a dog owner could possibly make a person a “harborer” of a dog. Bowman v. Stott (Ohio App. Ninth Dist., Summit, 12-31-2003) Number 21568, 2003-Ohio-7182, 2003 WL 23094923.

Negligence

Ohio permits a dog bite victim to recover compensation on the grounds of negligence by proving the elements of the one-bite rule (i.e., that the dog had the propensity to bite people without justification and that the owner, harborer, or keeper knew it). “[U]nder the common law, a plaintiff suing for damages inflicted by a dog under a theory of general negligence must show (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 defendant was negligent in keeping the dog.” Bowman v. Stott, 2003 -Ohio- 7182 (Ohio App. Dist.9 12/31/2003), citing Flint, 80 Ohio App.3d at 25-26. “”When it has been shown that the animal has been kept after knowledge of its dangerous character has been acquired or circumstances from which the law would imply knowledge and an injury has followed, this would be prima facie evidence of negligence.”” Flint v. Holbrook (Ohio Ct. App. 1992) 80 Ohio App. 3d 21, 26.

Negligence per se

In Ohio, the violation of an animal control law can result in liability on the part of the violator, whether or not he owns the dog. States, counties, and cities often have laws requiring dogs to be on a leash or prohibit them from being at large or trespassing. With few exceptions, courts have ruled that violating such laws can be the basis of liability. In this state, the violation constitutes negligence per se.

The doctrines of scienter and negligence can be pled in a single case

In Ohio, a suit for damages resulting from dog bites can be instituted under both the statute and common law. Warner v. Wolfe (1964), 176 Ohio St. 389, 393, 27 O.O.2d 356, 358.  A plaintiff who suffers an injury as a result of a dog bite may, in the same case, pursue both a strict liability claim under R.C. 955.28, and a common law negligence claim. Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624.

Assumption of the risk is not a defense

Assumption of the risk is not a permissible defense to an action for a dog bite brought pursuant to R.C. 955.28. Pulley v. Malek, 25 Ohio St.3d 95, 495 N.E.2d 402 (Ohio 07/23/1986); see also Quellos v. Quellos (Ohio Ct. App. 1994), 643 N.E.2d 1173.

Landlord liability

Ohio law allows a victim who to make a claim against a landlord who is a “harborer.” “[A] harborer is one who has possession and control of the premises where the dog lives, and silently acquiesces to the dog’s presence.” Flint v. Holbrook (Ohio Ct. App. 1992) 80 Ohio App. 3d 21, 25. A landlord who permits a dog to go onto the common areas of the landlord’s property is a “harborer” of the dog and thus can be held strictly liable for a dog bite. Weisman v. Wasserman (Ohio Ct. App. 2018) 2018 Ohio 290. This means that the attack had to happen in a “common area” of the premises. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25, 608 N.E.2d 809, 812. If the leased premises consist of a single-family residence, the landlord will not be held liable. (“”[If] the leased property at issue consists of a single-family residence situated on a `normal-sized city lot, there is a presumption that the tenants possessed and controlled the entire property.'”” Young v. Robson Foods, Inc. (Ohio Ct. App. 2009) 2009 Ohio 2781, 4.) For a landlord to be liable as a harborer for injuries inflicted by a tenant’s dog, “the plaintiff must prove that the landlord permitted or acquiesced in the tenant’s dog being kept in the common areas or areas shared by the landlord and tenant.” Young v. Robson Foods, Inc. (Ohio Ct. App. 2009) 2009 Ohio 2781, 3.

When a landlord violates his own rules about the presence of dogs on the leased property, the landlord cannot be held liable for that reason alone. For example, a trailer park owner who had a rule that residents could only have one dog was not liable to the victim of a dog bite from a dog owned by a resident who had two dogs, because the trailer park owner was not an owner, keeper or harborer of the dog or of the trailer where the accident happened, and the violation of the one-dog rule did not of itself establish liability. Burgess v. Tackas, 125 Ohio App.3d 294, (Ohio App. 01/20/1998).