Summary
In Smith, the trial court found that where the plaintiff was injured when he fell after being entangled in the dog's chain, a genuine issue remained as to whether the dog was more than a "passive instrumentality in the chain of events" leading to the plaintiff's injury.
Summary of this case from Bullis v. ValentineOpinion
No. 88-CV-0328.
Decided June 15, 1989.
James M. Rueger and Dean W. Pruitt, for plaintiff.
Steven D. Hengehold, for defendants.
On April 26, 1988, plaintiff, Don Smith, filed a complaint against Jett Hill Farm, Inc. and its owner, Jim Strader, alleging that he was injured by defendants' dog while plaintiff was delivering feed on defendants' premises. Plaintiff also alleges that defendants' dog attempted to bite, attack, or harass him, and that the dog caused its restraining chain to become entangled around the plaintiff's feet, causing plaintiff to fall, striking the ground, with plaintiff's loaded cart landing on the plaintiff. For his second cause of action, plaintiff claimed that the defendants willfully and recklessly owned or harbored the dog upon their premises, knowing that the dog was dangerous, vicious, and disposed to bite persons. In plaintiff's final cause of action he alleges that the defendants were negligent by keeping the dog in a place where it could come into contact with the plaintiff.
The defendants, in their answer, assert that plaintiff's injuries were caused by the plaintiff's own negligence.
Plaintiff filed a motion for summary judgment on March 16, 1989. In response the defendants argue that the plaintiff's injuries were not caused by the defendants' dog, relying upon the deposition obtained from plaintiff.
The undisputed facts disclose that, on the date in question, plaintiff was upon the premises of defendants, delivering feed by putting it in the defendants' barn. The defendants' dog was chained at a corner of the barn. As plaintiff delivered the feed, the dog sat by the driver's side, rear corner, of plaintiff's truck and barked. At some point in time, the dog quit barking and walked behind the plaintiff, so that the dog's chain was behind the plaintiff as he unloaded the feed and put it on the cart to take into defendants' barn. After plaintiff loaded the cart, he proceeded to take a couple of steps backwards, at which point he fell over the dog's chain.
In Ohio, there are three elements which must be proven to hold a person strictly liable under R.C. 955.28: (1) the defendant is the owner or keeper of the dog; (2) the dog in question is the proximate cause of plaintiff's damage; and (3) the monetary amount of the damages. Ohio Cas. Ins. Co. v. Robison (1982), 5 Ohio App.3d 223, 5 OBR 508, 451 N.E.2d 253, paragraph two of the syllabus. A traditional test for proximate cause which has been used by Ohio courts is "whether, in light of all the circumstances, an injury was likely to result to someone. * * *" State Farm Mut. Auto. Ins. Co. v. Shoaf (1982), 4 Ohio App.3d 122, 124, 4 OBR 213, 216, 446 N.E.2d 824, 828. Ordinarily, the issue of causation by a dog is a question of fact for the jury to decide. Neulist v. Victor (1965), 3 Ohio App.2d 88, 89, 32 O.O.2d 165, 166, 209 N.E.2d 494, 496. "* * * If reasonable minds may differ on the conclusions to be drawn from the evidence, * * * the court should not substitute its reasoning for that of the jury on the question of proximate cause." Id. Ohio cases dealing with strict liability of dog owners have not previously turned upon the issue of proximate cause under circumstances like the ones presented here, where the facts indicate that the dog may not have taken any action at all, against the plaintiff or otherwise. Thus, the court looks to similar cases in other strict liability jurisdictions.
Other states, having statutes like Ohio's, provide for strict liability of a dog owner or harborer when the dog injures someone. In the case of Bailey v. Bly (1967), 87 Ill. App.2d 259, 231 N.E.2d 8, the defendants were held not liable when a visitor on the premises stumbled over a dog lying in the visitor's path. This was so in spite of the fact that Illinois had a statute that made dog owners strictly liable for dogs' injuries or attacks. The plaintiff was exiting from the house, carrying a suitcase with clothing draped over it. The dog was lying near the screendoor on the porch. Plaintiff commanded the dog to move, which it did — it moved to the top step leading from the porch. Plaintiff then tripped over the dog. The reasoning employed by the court is Bly is particularly appropriate in the instant situation:
"* * * Here the dog is not engaged in an attack and is not causing an injury which in any way relates to the fact of being a dog. On the contrary, the dog in this case, as shown by the deposition of the plaintiff, was an inert or passive force so far as it concerns the injuries of the plaintiff. We will not impute to the legislature an imposition of liability, absolute in all respects, where there is no factual or reasonable basis for such liability other than as a pure penalty for dog ownership.
"That which is missing in this case is behavior or activity on the part of the dog which caused the injury to the plaintiff, although in reaching this conclusion we necessarily agree with the plaintiff that the statute is not necessarily limited to providing a remedy when a dog physically attacks a victim." Id. at 262, 231 N.E.2d at 9-10.
In Rutland v. Biel (Fla.App. 1973), 277 So.2d 807, a Florida court recognized that proximate cause was a defense available for dog owners under Florida's strict liability statute. Biel, the plaintiff, a guest in a minister's home, had been viewing an aquarium in the living room when she heard a dog yelp (apparently because she had stepped on its hair). She looked down to her side, saw the dog, took a step backward, tripped over the dog, and fell on her back. The court held that the statute was not applicable where a dog had taken no affirmative or aggressive action toward the injured party. Id. at 809. The Florida courts have continued to use this affirmative/aggressive distinction when imposing liability in dog cases. The Supreme Court of Florida has adopted this test:
"* * * This `affirmative act' requirement is a reasonable safeguard insofar as it forbids the imposition of liability in cases in which the animal is merely a passive instrumentality in a chain of events leading to injury. Even a strict liability statute should not reach that far. This interpretation is consistent with the general notion of proximate causation, since other factors would constitute superceding or overwhelming causes when the dog is merely passive or retreating." Jones v. Utica Mut. Ins. Co. (Fla. 1985), 463 So.2d 1153, 1157.
Here, plaintiff Smith must prove that the dog proximately caused his injuries before he is entitled to any relief under Ohio's strict liability statute. The court cannot substitute its own reasoning for that of the jury in determining proximate causation. Reasonable minds can differ as to whether defendants' dog proximately caused the plaintiff's injuries. Minds could differ as to whether under the circumstances injury was likely to occur to someone because defendants placed the dog at the corner of the barn. There is also conflicting evidence as to whether the dog made any affirmative or aggressive acts towards the plaintiff at the moment when the plaintiff tripped over the dog's chain. Defendants cannot be automatically penalized for mere dog ownership. It is incumbent upon the plaintiff to prove that defendant's dog was more than a passive instrumentality in a chain of events leading to his injury. At this point reasonable minds could come to different conclusions on this issue; therefore, plaintiff's motion for summary judgment is hereby denied.
Reporter's Note: The case was subsequently settled and the cause was dismissed.