Nice weather – spring rides – loose dogs … they seem to go hand in hand… or foot in mouth…
What’s the Dog Law like in Ohio? This is a topic I’ve covered in the past so some of this post will be repetitive. However, Ohio’s Dog Laws changed significantly in 2012, so we’ll also take a look at how counties can treat dog owners of dogs that are “nuisance,” “dangerous” or “vicious” dogs, under the new law’s standards… let’s check it out!
Ohio’s Dog Laws
I. IF YOU ARE HURT
So you’re riding along and Fido comes out of the yard and onto the roadway. I’ve handled dozens of “dog” cases over the years – but very few “bite” cases. In most cases, the dog causes a crash – often by striking the bike, getting in front of, and run over by, the bike or otherwise touching the bike or rider. In some cases, the dog and bike/rider never touch at all – rather the rider crashes trying to avoid the dog. In many, the dog is not “attacking” but playing – trying to engage the rider in some sort of game. Of course, in some cases, angry snarling mutts have come after my clients, attacking the bike or rider, and biting the rider.
What is The Law here? Can you recover from the owner if the dog never touched you? What if the dog is playing and comes over and licks your hand while you are lying in a heap on the pavement?
Well, the good news is that while Ohio is far behind the curve in many legal areas, it has one of the best “Dog Laws” in the country. There are two legal avenues for the owner to pursue – one is the statutory and the other is through Ohio’s case law history. Both provide for damages which cover medical bills, wage loss, out of pocket expenses and pain and suffering. One, however, provides an added recovery… IF the facts are there to back it up!
I. OHIO’S DOG STATUTE
In the usual “bike” situation, of course, a rider encounters a dog on the road – the dog is untethered and not on the owner’s property. In such situations the applicable statute covering liability for damages is Ohio Revised Code [ORC] Section 955.28 – Ohio’s Dog Statute. This statute imposes “strict liabilty” on the dog’s owner, keeper or “harborer” for “… any injury, death, or loss to person or property that is caused by the dog…”
The Dog Statute does NOT require that the dog bite the victim, or even touch the victim. Most of my clients crashed as a result of interacting with a dog, but were not actually bit by the dog. This is important. In some states a “bite” is required. In some the “One Bite Rule” still applies and the owner is not liable for the first “bite” of the dog. The burden is on the victim to show that the dog owner had reason to know the dog may attack.
In Ohio, the owner is liable under the statute regardless of the owner’s level of “fault” – a standard that has been described by Ohio courts as “absolute liability” – and this greatly helps the bike rider. There are vicious dogs, of course, who chase and nip and bite and attack. More often, the dog comes out to chase… to get in the way… maybe to “herd” the cyclist… and the rider goes down and suffers injuries.
Where is the insurance coverage here? Well, the dog owner’s homeowner’s policy provides the coverage. If the dog owner is a renter, or has no homeowner’s coverage, then you are stuck. You can go after the owner personally, of course, but it is very difficult to collect money from folks who don’t have any! That’s why we always look for an insurance policy.
If your dog owner was a renter, it is very difficult to “hook” the landlord in the case. The landlord MAY have liability. The case law is pretty tough though. You have to show that the landlord was a “harborer” of the dog by showing that the landlord had “possession and control” of the rental property – usually the tenant has possession and control, however. In one case, I handled, Dad “rented” a house to his son, and lived next door. However, during depositions we found out that “rent” wasn’t really paid, there wasn’t a written contract, Dad had a key to the place and went in regularly and the dog ran between the two rural “yards” and cornfields… Son had no homeowner’s insurance, so we sued dad as well, claiming he was a “harborer.” We settled the case before trial, but the only reason we settled was that we established enough facts to give us an arguable claim that Dad retained “possession and control” over the property and knew about, and acquiesced in, the dog’s presence and the dog’s tendency to run around.
II. COMMON LAW CLAIM AGAINST THE DOG OWNER
If the statute is so good, why do you need another claim? Well, if the facts are in your favor, you can recover compensatory damages, AND punitive damages and attorney fees!
The common law in Ohio described in a 1992 case:
“Under common law, a plaintiff suing for injuries inflicted by a dog must show that the defendant owned or harbored the dog, that the dog was vicious, that the defendant knew of the dog’s viciousness, and that the defendant was negligent in keeping the dog. McIntosh v. Doddy, supra.
“One can negligently keep and harbor a vicious dog 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. Under 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….”
In 2008, the Ohio Supreme Court said:
“At common law, the keeper of a vicious dog could not be liable for personal injury caused by the dog unless the person [keeper] knew of the dog’s ‘vicious propensities.’ ” Bora v. Kerchelich (1983), 2 Ohio St.3d 146, 147, 2 OBR 692, 443 N.E.2d 509, quoting Hayes v. Smith (1900), 62 Ohio St. 161, 56 N.E. 879, paragraph one of the syllabus. Thus, in a common law action for bodily injuries caused by a dog, a plaintiff must show that (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. Hayes at paragraph one of the syllabus. In a common law action for bodily injuries caused by a dog, as in any other common law tort action, punitive damages may be awarded. McIntosh v. Doddy (1947), 81 Ohio App. 351, 359, 37 O.O. 203, 77 N.E.2d 260.
That “punitive damages” language is a huge kicker, if you have the facts – i.e., proof that the owner knew of the viciousness of the dog. Punitive damages are those that go above and beyond “compensatory damages” and are designed to punish the wrongdoer. If punitive damages are awarded a court can also have the defendant pay the attorney fees of the victim as well! That’s a huge double-barreld blast … if you have the facts…
III. DEALING WITH THE BAD DOG – NEW ADMINISTRATIVE REMEDIES
In 2012, the Ohio Legislature modified the administrative remedies for dealing with dogs. The “big news” that made all the papers was that “pit bulls” were no longer going to be singled out as “vicious dogs” just because of their breed. Dogs which had been declared “vicious” continued as such – and the insurance requirements, discussed below, also continued.
The new law divides “bad dogs” into three categories – Nuisance, Dangerous and Vicious dogs.
ORC 955.11 can be read in its entirety here. A “nuisance dog” means a dog that without provocation and while off the premises of its owner, keeper, or harborer has chased or approached a person in either a menacing fashion or an apparent attitude of attack or has attempted to bite or otherwise endanger any person. So no “bite” of man or dog is actually required. Rather, an unprovoked dog just came after you – this happens in almost EVERY “bike/dog” case.
A “dangerous dog” means a dog that, without provocation”… has done any of the following: (i) Caused injury, other than killing or serious injury, to any person; (ii) Killed another dog; (iii) Been the subject of a third or subsequent violation of division (C) of section 955.22 of the Revised Code…”
A “vicious dog” means a dog that, “…without provocation… has killed or caused serious injury to any person…”
So, what’s the difference between “causing injury” [dangerous] and causing “serious injury?” [vicious]? Here’s the definition
(5) “Serious injury” means any of the following: (a) Any physical harm that carries a substantial risk of death; (b) Any physical harm that involves a permanent incapacity, whether partial or total, or a temporary, substantial incapacity; (c) Any physical harm that involves a permanent disfigurement or a temporary, serious disfigurement; (d) Any physical harm that involves acute pain of a duration that results in substantial suffering or any degree of prolonged or intractable pain.
From the Wood County document:
“Dog owners whose dogs have been deemed nuisance, dangerous, or vicious will receive notice from the designating officer of such designation. The owner may request a hearing to contest the designation but must file the request in writing within 10 days of the designation to the municipal or county court that has territorial jurisdiction over the residence of the dog’s owner, keeper, or harborer.
The owner, keeper, or harborer of a dangerous or vicious dog must comply with the following requirements:
post signs indicating the presence of a dangerous or vicious dog,
spay or neuter the dog,
microchip the dog,
obtain and maintain current rabies vaccinations,
may have to obtain specific liability insurance coverage, and
must register the dangerous or vicious dog annually.
The required registration of a dangerous or vicious dog with the Wood County Auditor costs $50 annually. This is in addition to the regular annual dog registration and license fee of $14, or $28 if purchased after the required timeframe.
Confinement of the dangerous or vicious dog must also be in accordance with new, stricter requirements. Persons who are convicted of or plead guilty to certain felony offenses may not own, possess, have custody of or reside in a residence with a dangerous dog or an unspayed or unneutered dog older than twelve weeks of age.
In every case we can check the Dog Warden’s records to see if the owner of the dog that knocked you off your bike had been previously ticketed by the Warden. If so, and if the owner didn’t take the steps required under the law, you will have an excellent case for punitive damages!
Even if the new changes to Ohio law won’t help in your case, YOU help the NEXT guy who rides down that road by forcing the dog owner to take steps to protect the next guy from that dog!
Let’s be Careful out There!