[Cite as Green v. Zack , 2019-Ohio-4944.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

THOMAS KERRY GREEN, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellant : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : MICHAELA SHEPHERD ZACK, : Case No. 2019 CA 0057 : Defendant : O P I N I O N

and MICHAEL P. SHEPHERD, Defendant-Appellee

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2018CV0162

JUDGMENT: Affirmed

DATE OF JUDGMENT: December 2, 2019

APPEARANCES: For Plaintiff-Appellant For Defendant-Appellee

DAVID D. CARTO TODD M. ZIMMERMAN Weldon, Huston & Keyser, L.L.P. DANIEL J. MATUSICKY 76 North Mulberry Street Rohrbachers Cron Manahan Mansfield, Ohio 44902 Trimble & Zimmerman Co., L.P.A. 460 Polaris Parkway, Suite 175 Westerville, Ohio 43082Richland County, Case No. 2019 CA 00057 2

Baldwin, J. {¶1} Plaintiff-appellant Thomas Kerry Green appeals from the May 23, 2019 Judgment Entry of the Richland County Court of Common Pleas gra nting the Motion for Summary Judgment filed by defendant-appellee Michael R. Shepher d.

STATEMENT OF THE FACT AND CASE {¶2} On March 13, 2016, appellant Thomas Kerry Green was bit by a la rge Great Dane while running recreationally along a public roadway known as Millsboro Road West in Richland County, Ohio. As he approached the house and proper ty located at 3619 Millsboro Road West, a large Grea t Dane “came ripping off the p orch” and attacked appellant, causing him to suffer severe lacerations, puncture w ounds, loss of skin and muscle tissue, a compression fracture of his left tibial platea u and permanent scaring on his right forearm and left leg. D eposition of Thomas Kerry Gree n at 14-16, 36, 42-45. {¶3} The dog which attacked appellant was owned and kept at the prem ises by Michaela Shepherd Zack (hereinafter “Zack”) who is appellee’s d aughter. The premises is a single family home. Appellee is the owner of the premises and his daughter had been living there under a verbal lease since September of 2015. Dur ing her deposition, Zack testified that she paid appellee, who did not live at the prope rty, $685.00 a month in rent and paid the utilities. Deposition of Michaela Shepherd Zack at 9. The two did not have a written lease. Appellee paid the real estate taxes, mortgage pa yments and insurance premiums pertaining to the property. Zack testified that her f ather would visit her approximately once a week. {¶4} During his deposition, appellee testified that his daughter was buying the property on land contract. There was, however no written land c ontract between them.Richland County, Case No. 2019 CA 00057 3

He further testified that she told him that the Great Dane, nam ed Albert, had been involved in two other reported incidents where he had bitten and injured other people. One

incident was in November of 2015 and the other in December of 2 015. On or about November 15, 2015, a bite report was made to the Richland Count y Dog Warden about Albert and Albert was determined to be a dangerous dog under R. C. Section 955.11(A)(1)(a)(i). Zack was ordered to keep Albert restrained in compliance with the requirements of R.C. 955.22(D). Zack then installed a fence on the property. During her deposition, Zack testified that she discussed the two incidents with appellee and that he was aware that the Dog Warden had ordered that Albert be enclos ed on the property. After the November 2015 incident, Zack also was ordered to be m uzzled while off the premises. After someone told appellee that Albert had been labe led a dangerous dog, appellee spoke with Zack and asked her about her plans. Accordi ng to him, Zack told him that she had talked to the Dog Warden and was told that she nee ded to keep Albert restrained. Appellee testified that when he went over to the p remises, Albert was on a

chain that was staked and was muzzled. {¶5} The following is an excerpt from appellee’s deposition testimon y: {¶6} A: My concern was that the person on the phone had told me the dog had been labeled a dangerous dog. So I asked her [Zack] what her p lans were about the dog, and she said that the dog warden – she either told me the dog w arden had been out and talked to her or it was on the telephone - - I can’t remember - - and told her what needed to be done if she was going to keep the dog.Richland County, Case No. 2019 CA 00057 4

That satisfied me. I had no control over what she was going to do with the dog and all of this. It was - - my name is on the house, but s he’s in charge. She can

knock out a wall if she wants to. {¶7} Q: Were you concerned that, as the owner of the property, you wanted to make sure there wasn’t something on the property that might cau se harm to somebody

else? {¶8} MR. ZIMMERMAN: Objection. {¶9} A: Something on the property? {¶10} BY MR. CARTO: {¶11} Q: Right. {¶12} A: Meaning the dog? {¶13} Q: Yes. {¶14} A: That’s a tough question. When I got the phone call and the y told me that the dog was labeled a dangerous dog, that’s when I called Mik [Zack]. When Mik [Zack] told me that she had conversed with the dog warden that satisfied me that she was going to keep the dog. She built a cyclone fence all around th e backyard, and the dogs were staying in that many hours a day. They were in there or i n the house. The only times, to my knowledge, that the dog was outside on the chain i s when Mikki [Zack] was outside with the dog. She never put the dog outside and then w ent for a ride or something. {¶15} Q: So as the owner of the property, you wanted to make sure, i f this was

indeed a da ngerous dog, tha t it was properly secured?... {¶16} MR. ZIMMERMAN: You can answer. If you know the answer. {¶17} A: Okay. What was the question?Richland County, Case No. 2019 CA 00057 5

{¶18} BY MR. CARTO: {¶19} Q: I knew that was going to be a problem. I asked it in so ma ny different ways. I’ll try to rephrase it. You were concerned when you were told that there may be a dange rous dog on the property you owned that you wanted to see what Micha ela [Zak] was going to do with the dog, correct? {¶20} A: Right. {¶21} Q: She indicated to you that with the dog warden’s advice, she would secure the dog in the manners that you’ve described? {¶22} A: Yes. {¶23} Q: And that satisfied your concern? {¶24} A: That - - yes. {¶25} Q: So I take it that if she had not indicated that she was goi ng to take any precautions to secure a dangerous dog, that you would not have been satisfied? {¶26} A: I would not have been. {¶27} Q: As the owner of the property, did you feel like you could t ell her to divest ownership of the dog if you weren’t satisfied with the precauti ons she was taking? {¶28} MR. ZIMMERMAN: Objection. Go ahead. {¶29} A: The best ownership? {¶30} BY MR. CARTO: {¶31} Q: Divest ownership, meaning she could either destroy, or give away, the dog if you weren’t satisfied with the precautions she was takin g.Richland County, Case No. 2019 CA 00057 6

{¶32} A: Yeah. At that point, the only thing I was going by is that the dog warden had told her what to do to keep the dog. {¶33} Appellee’s Deposition at 22-25. {¶34} Zack testified that after the two incidents, appellee did not a dvise her to remove Albert from the property or to euthanize him. Accordin g to Zack, on March 13, 2016, she had allowed Albert to be outside in front of the hous e. She testified that while he was muzzled, the muzzle was damaged and that at the time, he was on a running cable tethered to the front door ramp which she had removed fro m the backyard. Albert broken the cable and discarded the muzzle before attacking appe llant. As a result of the attack on appellant, Zack was charged with and pled guilty to v iolating R.C. 955.22(D)(1) for failing to securely confine a dangerous dog while on the pr emises and (2) for failing to securely restrain and muzzle a dangerous dog while off the prem ises. Shortly after the attack on appellant, Albert was euthanized. {¶35} Zack testified that she was in charge of the premises and decid ed who could

and who could not come to her house. She also controlled what h er son could and could not do while on the property. While she is in charge of maintai ning the property, she testified that she would not make any permanent modifications t o the property or structure without informing her father. She further testified that if her father had told her that he wanted her to get the dog off of the property, she would have c omplied. The two, however, never had such a discussion. {¶36} On March 5, 2018, appellant filed a personal injury complaint a gainst appellee and Zack. Appellant alleged negligence, recklessness a nd one count of strictRichland County, Case No. 2019 CA 00057 7

liability against Zack and negligence against appellee. Appelle e filed an answer on April 4, 2018 and Zack, with leave of court, filed an answer on June 5, 2018. {¶37} Appellee filed a Motion for Summary Judgment on January 17, 201 9. Zack filed a memorandum in opposition on February 27, 2019 and appel lant filed a memorandum in opposition on February 28, 2019. On April 12, 201 9, appellee filed a reply brief. {¶38} As memorialized in a Judgment Entry filed on May 23, 2019, the trial court granted appellee’s Motion for Summary Judgment, holding that “r easonable minds could only reach but one conclusion and that is that [appellee] did n ot maintain possession and control over the premises in question” and, therefore, could no t be held liable as a

harborer of Albert under either R.C. 955.22 or common law. {¶39} Appellant now raises the following assignment of error on appea l: {¶40} “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

IN FAVOR OF DEFENDANT-APPELLEE , MICHAEL P. SHEPHERD UPON THE

GROUNDS THAT THERE WAS EVIDENCE IN THE RECORD THAT HE WAS A

HARBORER OF THE DANGEROUS D OG WHICH ATTACKED PLAINTIFFAPPELLANT. ”

I {¶41} Appellant, in his sole assignment of error, argues that the tri al court erred in granting summary judgment in favor of appellee. We disagree. {¶42} We review cases involving a grant of summary judgment using a d e novo standard of review. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002- Ohio-2220, 767 N.E.2d 707, ¶ 24. A de novo review requires an i ndependent review ofRichland County, Case No. 2019 CA 00057 8

the trial court's decision without any deference to the trial c ourt's determination. Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993)

as cited in State v. Standen , 9th Dist., 173 Ohio App.3d 324, 2007-Ohio-5477, 878 N.E.2d 657, ¶ 7. “Thus, viewing the pleadings in the light most favora ble to the [appellant], we must determine whether [appellee] was entitled to judgment as a matter of law.” Civ.R. 56(C). Troyer v. Janis , 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6.”[w]e afford no deference to the trial court's decision and independe ntly review the record to determine whether summary judgment is appropriate.” Tornado Techs., Inc. v. Quality Control Inspection, Inc., 2012-Ohio-3451, 977 N.E.2d 122, ¶ 13 (8 th Dist.). {¶43} In Ohio, the two bases for recovery for injuries sustained as a result of a dog bite are common law and statutory : [I]n 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 vic iousness.

* * [I]n an action for damages under R.C. 955.28, the plaintiff mus t prove (1) ownership or keepership [or harborship] of the dog, (2) that th e dog's actions were the proximate cause of the injury, and (3) the damages. * * * [T]he defendant's knowledge of the dog's viciousness and the defendan t's negligence in keeping the dog are irrelevant in a statutory act ion.

Beckett v. Warren , 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 7-11.Richland County, Case No. 2019 CA 00057 9

{¶44} There is no dispute that appellee was neither the owner nor kee per of Albert. The question thus becomes whether appellee was a harbor er of the dog. Appellant argues that there is a genuine issue of material fact as to whe ther or not appellee was a

“harborer” of Albert. {¶45} A “harborer” is someone who has possession and control of the p remises where the dog lives and silently acquiesces to the dog's presen ce. Bowman v. Scott, 9 th Dist. Summit App. No. 21568, 2003–Ohio–7182; Thompson v. Irvin , 12th Dist. Butler App. No. CA97–05–101, 1997 WL 66079 (2 nd Dist. 1997). The hallmark of control is the ability to advent or to exclude others from the property. Flint v. Holbrook , 80 Ohio App.3d 21, 608 N.E.2d 809 (1992). In determining whether a defendant is a harborer of a dog, the central focus of a court's analysis “shifts from possession and control over the dog to possession and control of the premises where the dog lives.” Flint, supra at 25. {¶46} Generally speaking, a landlord will not be held responsible for injury caused by a tenant's dog so long as the tenant is in exclusive possess ion and control of the premises. Absent a contrary agreement, a lease agreement transf ers both the possession and the control of the premises to the tenant. Burrell v. Iwenofu, 8th Dist. Cuyahoga App. No. 81230, 2003–Ohio–1158; Hilty v. Topaz, 10th Dist. Franklin App. No. 04AP–13,

2004–Ohio–4859. See Parker v. Sutton , 72 Ohio App.3d 296, 299, 594 N.E.2d 659 (6th Dist. 1991); Hurst v. Manalo (Jul. 29, 1999), Cuyahoga App. No. 74270. {¶47} Regarding the relationship between a landlord and tenant, “it i s wellestablished that a lease transfers both possession and control of the leased premises to

the tenant.” Richeson v. Leist, 12th Dist. Warren No. CA2006–11–138, 2007–Ohio–3610, at ¶ 13, citing Flint, 80 Ohio App.3d at 25. Accordingly, “[i]f the tenant's dog is c onfinedRichland County, Case No. 2019 CA 00057 10

only to the tenant's premises, the landlord cannot be said to h ave possession and control of the premises on which the dog is kept.” Godsey v. Franz, 6th Dist. Williams No. 91 WM000008, 1992 WL 48532 at *4 (Mar. 13, 1992). For a landlord t o be liable as a harborer for injuries inflicted by a tenant's dog, “the plainti ff must prove that the landlord permitted or acquiesced in the tenant's dog being kept in the c ommon areas or areas shared by the landlord and tenant.” Stuperv. Young, 9th Dist. Summit No. 20900, 2002– Ohio–2327, at ¶ 13, citing Godsey, supra 4). “[If] the leased property at issue consists of a single-family residence situated on a ‘normal-sized city lot, there is a presumption that the tenants possessed and controlled the entire property.’ ” Richeson, 2007–Ohio–3610, at ¶ 13, quoting Engwert–Loyd v. Ramirez, 6th Lucas Dist. No. L–06–1084, 2006–Ohio– 5468, at ¶ 11. {¶48} In the instant case, there was evidence that Zack leased the pr operty from appellee, who owned the property, and appellee was her landlord . She made all of the utility payments while he, as landlord, paid the real estate ta xes, mortgage payments and insurance premiums. Appellee ceased living at the premises in q uestion in 2014 before Zack moved in and began paying rent and did not share any porti ons of the property with her. Moreover, appellee never retained any right to possess or control any portions of the leased premises and did not share any common areas of the p roperty with Zack. During her deposition, Zack testified that she rented the entir e property from appellee and decided who could and could not come to the premises and contro lled what her son could or could not do on the property. Appellee, when asked, was unab le to recall whether or not Zack allowed her boyfriend to stay at the house and did not know whether or not Zack’s children stayed at her home regularly. Zack further test ified that she decided whatRichland County, Case No. 2019 CA 00057 11

dogs could live at her house. Appellee testified during his dep osition that Zack was in charge of the house and that “[s]he can knockout a wall if she wants to.” Appellee’s Deposition at 22. {¶49} Based on the forgoing, we concur with the trial court that “rea sonable minds could only reach but one conclusion and that is that [appellee] did not maintain possession and control over the premises in question” and, therefore, coul d not be held liable as a

harborer of Albert under either R.C. 955.22 or common law. We find, therefore, that the trial court did not err in granting summary judgment in favor o f appellee. {¶50} Appellant’s sole assignment of error is, therefore overruled. {¶51} Accordingly, the judgment of the Richland County Court of Commo n Pleas

is affirmed.

By: Baldwin, J. Gwin, P.J. and Wise, Earle, J. concur.