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Archive for November, 2008:


Dog Bites and Other Animal Attacks

R.C. 955.28(B) states that “[t]he 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 *** teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.” R.C. 955.28 does not provide for the award of punitive damages. Tynan v. Hanlon (1959), 110 Ohio App. 77, 79.  “R.C. 955.28 does not establish negligence per se. Rather, the statute establishes liability without regard to fault or the dog owner’s negligence.” Allstate Ins. Co. v. U.S. Assoc. Realty, Inc. (1983), 11 Ohio App.3d 242, 246, citing Hirschauer v. Davis (1954), 98 Ohio App. 479, affirmed (1955), 163 Ohio St. 105; Silverglade v. Von Rohr (1923), 107 Ohio St. 75.  “In order to maintain a strict liability cause of action under R.C. 955.28(B), the plaintiff must establish: (1) that the defendant is the owner, keeper or harborer of the dog; (2) that the injury was proximately caused by the dog’s actions; and (3) the monetary amount of the damages.” Bowman v. Stott, 9th Dist. No. 21568, 2003-Ohio-7182, at ¶8, citing Hirschauer v. Davis (1955), 163 Ohio St. 105, paragraph three of the syllabus; Stuper v. Young (May 15, 2002), 9th Dist. No. 20900, at *4.

“Under 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 at ¶19, citing Flint v. Holbrook (1992), 80 Ohio App.3d 21, 25-26. Punitive damages may be awarded in a common law action against the dog owner. Rothenbusch-Rhodes, supra, at ¶38, citing Tynan, 110 Ohio App. at 7

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Consortium

There are several types of consortium.  Consortium essentially is a derivative claim, meaning that a person can recover money damages for severe injuries to a loved one.

Parental/Filial Consortium

In Gallimore v. Children’s Hosp. Med. Ctr. (1993), 67 Ohio St.3d 244, the Ohio Supreme Court held:

1. A parent may recover damages, in a derivative action against a third-party tortfeasor who intentionally or negligently causes physical injury to the parent’s minor child, for loss of filial consortium. Consortium includes services, society, companionship, comfort, love and solace.

2. In Ohio, a minor child has a cause of action for loss of parental consortium against a third-party tortfeasor who negligently or intentionally causes physical injury to the child’s parent. Consortium includes society, companionship, affection, comfort, guidance and counsel.

Spousal Consortium

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Work Related Accidents/Negligence of Third Party

While I do not usually handle workers’ compensation cases per se, I do handle work related accidents when the injury is caused not by the employer’s negligence, but by the negligence of a third party.  This takes the matter out of the workers’ compensation system, and into my arena (civil litigation).  At The Donahey Law Firm, we do have attorneys on staff who handle workers’ compensation cases for serious work-related injuries.

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Landlord Obligations

Statutory Obligations

The obligations of landlords in Ohio are governed in part by RC 5321.04.  Under RC 5321.04 (enacted in 1974), a landlord must (among other things):

(1) Comply with the requirements of all applicable building, housing, health, and safety codes that materially affect health and safety;

(2) Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition;

(3) Keep all common areas of the premises in a safe and sanitary condition;

(4) Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances, and elevators, supplied or required to be supplied by the landlord.

A landlord is liable for injuries sustained on the demised residential premises that are proximately caused by the landlord’s failure to fulfill the duties imposed by R.C. 5321.04.  A violation of a statute which sets forth specific duties constitutes negligence per se.  Schell v. DuBois (1916), 94 Ohio St. 93 ; Patton v. Pennsylvania R.R. Co. (1939), 136 Ohio St. 159 ; Grieser v. Huntington Natl. Bank (1964), 176 Ohio St. 291 .  However, in addition to negligence per se, proximate cause for the injuries sustained must be established.  Schell and Patton, supra.  Also it must be shown that the landlord received notice of the defective condition of the rental premises, that the landlord knew of the defect, or that the tenant had made reasonable, but unsuccessful, attempts to notify the landlord.  See Shroades v. Rental Homes (1981), 68 Ohio St.2d 20.

Natural Accumulations of Ice and Snow

R.C. 5321.04(A)(3) does not impose a duty on landlords to keep common areas of the leased premises clear of natural accumulations of ice and snow. LaCourse v. Fleitz (1986), 28 Ohio St.3d 209.

DeAmiches v. Popczun (1973), 35 Ohio St.2d 180:

1. The dangers from natural accumulations of ice and snow are ordinarily so obvious and apparent that a landlord may reasonably expect that a tenant on a common driveway will act to protect himself against them.

2. Where a hole in the surface of a common driveway is covered by a natural accumulation of ice and snow and the tenant’s knowledge of said defect is equal to or superior to that of the landlord, the landlord is not liable for injuries sustained by the tenant as the result of stepping into the hole. (Mikula v. Slavin Tailors, 24 Ohio St.2d 48 , followed.).

3. A tenant, who knowingly and deliberately ventures onto a hazardous area which is covered with a natural accumulation of ice and snow, assumes the risk of any resulting injuries.  

The Liability of Landlords for Animals Kept by Tenants

As a general rule, a landlord may not be found liable for injuries to a third person occasioned by a vicious or dangerous animal kept by a tenant on premises within the tenant’s exclusive control. See Annotation, Landlord’s Liability to Third Person for Injury Resulting from Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant (1991), 87 A.L.R.4th 1004. See, also, Parker v. Sutton (1991), 72 Ohio App.3d 296. However, landlords out of possession can be found liable for injuries caused by the animal kept on the leased premises by the tenant where the landlord has knowledge of the dangerous or vicious animal but fails to abate the hazard with sufficient time to do so. Flint v. Holbrook (1992), 80 Ohio App.3d 21, 26. “[W]hen 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.” Hayes v. Smith (1900), 62 Ohio St. 161, 182-183. Accordingly, to find the landlord liable, the court must determine that the landlord harbored the dog with knowledge of its vicious tendencies under common law. Flint at 26.

Call Us:

We represent tenants in personal injury cases against landlords.  If you or a loved one have been injured as the result of landlord negligence, please feel free to contact me.

Jeff Beausay, Trial Attorney

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Different Methods

The “Different Methods” jury instruction (3 OJI Section 331.02, para 3) should only be used when there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition.  See Pesek v. Univ. Neurologists Assoc., Inc. (2000), 87 Ohio St.3d 495; Peffer v. Cleveland Clinic Found., 177 Ohio App.3d 403, 2008-Ohio-3688.

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Increased Care Burden

When someone is severely injured in an accident or as a result of medical negligence, the injured party’s spouse sometimes will miss work in order to care for his/her spouse at home.  The question is:  What damages are recoverable for this care?  Can the spouse recover for loss of income if s/he takes off work to care for the injured party?  Or can they only recover for the fair market value of the home health care?

In Hutchings v. Childress, 119 Ohio St.3d 486, 2008-Ohio-4568, the Ohio Supreme Court held:  The injured spouse can recover the fair market value of the home health care provided by the supportive spouse, but not for the loss of income.

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© Jeffrey Beausay
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