Nice weather – long rides – sweet rolling rural roads… and dogs running loose … 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!
As Always, no article on Dog Law is complete without some of Steve’s Legally Dogmatic Poetry…
Dogs are said to be Man’s Best Friend,
I’ll grant you all that much
It’s just hard for me to call him “Pal”
While he has my calf for Lunch!
Thank you… thank you very much..
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 actual “dog bite” cases. In most cases where dogs and cyclists interact on the road the dog causes a crash – often by running out from a yard or field and striking the bike – or 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. Sometimes, the dog is not “attacking” but playing – trying to engage the rider in some sort of game. Of course, in many cases, angry snarling mutts have come charging onto the road intent on getting my clients, attacking the bike or rider, and biting the rider.
What is “The Law” here? Can you recover from the dog’s owner for injuries and damages caused by a crash even if the dog never actually 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? Can the owner face stiffer damages if a dog is known to be aggressive?
Well, the good news is that while Ohio lags 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 “Cyclist vs. Dog” situation, of course, a rider encounters a dog on the road – the dog is untethered and not on the owner’s property. Frequently the owner is nowhere to be found. 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.
The concept of “strict liability” is extremely important. Under the Dog Statute, the owner is liable regardless of the owner’s level of “fault” – a standard that has been described by Ohio courts as “absolute liability.” The victim does not have to prove that the owner was “negligent” or careless. The owner is liable even if she/he used all possible means to corral the dog – the best fence, tether, whatever… if the dog gets out, goes on the road and causes a cyclist to crash, then the owner is liable…period.
Ohio’s law, unlike some in other states, does not require an “attack” or “bite” for liability to attach. Some states have what is referred as a “One Bite Rule.” Under this concept the owner is not put on notice of the dog’s tendencies until after the dog does something aggressive…so the first victim is …well… screwed… after that the owner is liable. Under Ohio’s Dog Statute, the owner is liable from Day 1. In one case I had a puppy ran out in front of an oncoming cyclist, who hit the poor pup at a pretty good clip. The cyclist suffered a fractured clavicle and the pup’s owner was required to pay all the damages even though the pup was hardly vicious or aggressive – just curious and playful.
As you can imagine, this strict liability concept also 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 even to “herd” the cyclist depending on the breed… and the rider goes down and suffers injuries.
Where is the insurance coverage here? Well, the dog owner’s homeowner’s policy typically provides the coverage. If the dog owner is a renter, or has no homeowner’s coverage, then you may be 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 the dog owner was a renter, it is very difficult to assess liability to a landlord. The landlord MAY have liability, but you have to have the right set of facts… and the case law is pretty tough.
If you hurt by a dog owned by a renter and you want to determine if the landlord has liability you must prove 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 Dad lived directly next door. However, during depositions we found out that no “rent” was every actually paid – that there was no written contract – that Dad kept a key to the son’s place and regularly used the key to go in and out as he wished. We established that there was some land between the two rural homes and that the dog was permitted by Dad to run freely between the two rural “yards” and cornfields… In this case Son had no homeowner’s insurance of his own so we sued Dad as well, claiming he was a “harborer” of the dog under the Dog Statute. We eventually settled the case before trial. 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 was well aware of the dog’s tendency to freely run around the property.
II. COMMON LAW CLAIM AGAINST THE DOG OWNER – PUNITIVE DAMAGES
As I stated in the beginning, Ohio has two paths for recovery – the Dog Statute, which is excellent, and the “Common Law.”
So if the Dog 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 right facts – i.e., proof that the dog was vicious and that the owner/harborer knew of the viciousness of the dog.
Normal “compensatory” damages are damages designed solely to make the victim whole, but not to punish the wrongdoer. Compensatory damages available in the typical case include paying Medical Bills, Wage Loss, out of pocket losses and pain and suffering.
Punitive damages go above and beyond “compensatory damages” and ARE designed to punish the wrongdoer. Punitive damages are awarded in addition to compensatory damage – and usually include an award of attorney fees! In most cases under U.S. Law you do NOT recover your attorney fees… those are just a “cost of doing business” in the courts. In a punitive damages case you can win your attorney fees along with the punitive damages. That’s a huge double-barreld blast … if you have the right 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!