Two Bites at the Apple

Ohio -- Premises Liability (Dog Bites)

Key Points:

  • Plaintiff may pursue claims under both R.C. 955.28 and common law negligence for a dog bite cause of action.
  • No language in R.C. 955.28 establishes the statute as the sole remedy.

 

In Beckett v. Warren, 2008-Ohio-4689, the Ohio Supreme Court held that a plaintiff, in the same case, may pursue claims under both R.C. 955.28 and common law negligence for a dog bite cause of action. In Beckett, the plaintiff pursued a claim on behalf of her minor child for a dog bite. The trial court required the plaintiff to choose between pursuing the common law or statutory remedy. The plaintiff chose the statutory remedy, and the jury rendered a verdict for $5,000. The plaintiff moved for a new trial, and the court denied the motion.

The Summit County Court of Appeals, in the later appeal, held that the plaintiff could pursue simultaneous claims for relief under both the statute and at common law. Both parties appealed to the Ohio Supreme Court.

R.C. 955.28 provides statutory relief without punitive damages. The elements to prevail on a statutory claim are:

  • Ownership or keepership of a dog;
  • Whether the dog's actions proximately caused injury; and
  • The monetary amount of damages.

 

The common law elements are:

  • The defendant owned or harbored the dog;
  • The dog was vicious;
  • The defendant knew of the viciousness; and
  • The dog was kept in a negligent manner after the keeper knew of the dog's viciousness.

 

Unlike the statutory remedy, punitive damages are available under the common law.

The Supreme Court held that both claims for relief are available to the plaintiff for the following reasons:

  • There is no language in R.C. 955.28 which establishes the statute as the sole remedy;
  • The Ohio Rules of Civil Procedure allow for alternative pleading of different types of relief, regardless of consistency; and
  • The statutory and common law remedies are not repugnant or inconsistent with each other as the common law remedy merely provides a potential additional remedy for punitive damages.

 

The Court also noted that the trial court can easily instruct the jury as to each remedy and the elements provided by each remedy. The compensatory damages remain the same as to each remedy, thus, there is no double recovery.

Plaintiffs now have two bites at the apple for a single dog bite cause of action, and defendants may need to defend more than one claim. Defendants will need to adjust their evaluation of each claim as to potential punitive exposure and the costs of defending alternative, simultaneous remedies.

* Sam is a shareholder who works in our Akron, Ohio, office. He can be reached at (330) 255-0601 or sgcasolari@mdwcg.com.

Defense Digest, Vol. 16, No. 2, June 2010