Pickett v. Ohio Dept. of Rehab. & Corr.
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[Cite as Pickett v. Ohio Dept. of Rehab. & Corr., 2001-Ohio3960.]
IN THE COURT OF CLAIMS OF OHIO
LATTIMORE PICKETT
:
Plaintiff
:
CASE NO. 2000-02755
v.
:
DECISION
:
Judge Russell Leach
DEPARTMENT OF REHABILITATION
AND CORRECTION
:
Defendant
: : : : : : : : : : : : : : : : :
This case was tried to the court on the sole issue of
liability.
Plaintiff asserts that defendant is liable under
theories of negligence and strict liability pursuant to R.C.
955.28(B) for injuries he sustained on defendant’s premises as a
result of a dog bite.
At all times relevant to this action, plaintiff was an
inmate in the custody and control of defendant at the Madison
Correctional Institution (MCI) pursuant to R.C. 5120.16.
Plaintiff was housed in Unit J-B and worked as a dog handler in
the Pound Puppy Program operated by MCI in conjunction with the
Madison County Humane Society (MCHS).
The program was designed
for inmates to train dogs up to 1½ years old in basic obedience.
Inmates who volunteered to work in the program underwent
training conducted by defendant that included instructional
videos, classes and a written packet of instructions.
Each
inmate was assigned to one dog, which was to be kept in a cage at
Case No. 2000-02755
the foot of the inmate’s bed.
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DECISION
Dog food and supplies were
provided by MCHS and distributed to the inmates by defendant.
After ninety days of training, the dog would become eligible for
adoption either by inmates, defendant’s employees, or patrons of
MCHS.
Although inmates volunteered to participate in the
program, they were paid approximately $22 per month for their
work as dog handlers.
Sergeant Martha Crabtree had been involved with the dog
training program since approximately 1995.
She was responsible
for receiving the dogs from MCHS and assigning them to the
inmates.
Sgt. Crabtree testified that MCHS sent her a piece of
paper with each dog’s age, breed, and record of immunizations.
By September 1998, plaintiff had been working in the program
for approximately nine months and had trained three dogs.
On
September 16, 1998, a Dalmatian was assigned to plaintiff.
However, that dog displayed violent tendencies and was returned
to MCHS.
Elkhound.
wolf.
Eventually, plaintiff was assigned an adult Norwegian
According to plaintiff, the dog looked like a haggard
Plaintiff took the dog to his cubicle and gave it a treat.
When plaintiff picked up some remaining crumbs, the dog lunged
at him.
Plaintiff’s cell mate told Sgt. Crabtree about that
incident.
Afterwards, Sgt. Crabtree, Sgt. Terry Campbell, and
Corrections Officer (CO) Arthur Smith went to plaintiff’s cubicle
and spoke to plaintiff about the dog.
According to plaintiff,
the dog then lunged at Sgt. Crabtree when she gave it a biscuit.
Plaintiff testified that Sgt. Crabtree assured him that the dog
would only be there a couple of days and that he should stick
Case No. 2000-02755
with it.
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DECISION
Plaintiff further testified that Sgt. Crabtree did not
offer to return the dog to MCHS but instructed plaintiff to feed
the dog in its cage.
The next day, plaintiff walked the dog in the yard and took
the dog into the bay area of the dormitory.
sit.
He told the dog to
When plaintiff reached for the dog’s leash, the dog bit him
in the face, causing severe injuries.
Plaintiff was transported
to a hospital for treatment.
Sgt. Crabtree testified that plaintiff’s cell mate came to
her and stated that the dog was behaving strangely in the
cubicle, and that the dog had snapped at plaintiff.
She
testified that the dog barked but did not snap at her when she
went to plaintiff’s cubicle.
She also testified that she offered
to return the dog to MCHS but that plaintiff and his cell mate
stated that they wanted to work with the dog.
Plaintiff maintains that defendant is strictly liable
pursuant to R.C. 955.28(B).
Defendant argues that R.C. 955.28(B)
does not apply in this case because an owner, harborer, or keeper
of a dog cannot state a statutory cause of action for a dog bite.
R.C. 955.28(B) states:
(B) The 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 committing or
attempting to commit a trespass or other
criminal offense on the property of the owner,
keeper, or harborer, or was committing or
attempting to commit a criminal offense against
any person, or was teasing, tormenting, or
Case No. 2000-02755
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DECISION
abusing the dog on the owner’s, keeper’s, or
harborer’s property.
An owner is the person to whom a dog belongs, while a keeper
has physical control over the dog.
5 Ohio App.3d 179, 182.
Garrard v. McComas (1982),
Additionally, a harborer is one who has
possession and control of the premises where the dog lives, and
silently acquiesces to the dog’s presence.
See Flint v. Holbrook
(1992), 80 Ohio App.3d 21.
Defendant contends that no statutory cause of action exists
in this case because plaintiff, as a dog handler, was the
“keeper” of the dog.
In Khamis v. Everson (1993), 88 Ohio App.3d
220, the Montgomery County Court of Appeals held that a “keeper”
is not within the class of people that the legislature intended
to protect in enacting the strict liability provision contained
in R.C. 955.28(B).
It is defendant’s position that MCHS was the
“owner” of the dog; defendant was the “harborer”; and, plaintiff
was the “keeper.”
In Khamis, plaintiff was working as a
volunteer at a kennel when he was bitten by a dog that had been
left in his care.
The court held that plaintiff was the “keeper”
of the dog, and as such, could not state a statutory cause of
action.
Based upon that rationale, this court concludes that
plaintiff cannot successfully pursue a cause of action for strict
liability pursuant to 955.28(B).
Therefore, plaintiff’s
statutory claim must fail.
However, “keepers” or “harborers” of dogs may still maintain
a common-law cause of action against the dog’s owner.
See
Khamis, supra; Warner v. Wolfe (1964), 176 Ohio St. 389, 392-393.
Case No. 2000-02755
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DECISION
Defendant argues that it was a harborer of the dog and not its
owner, therefore, it is not liable for injuries caused by the
dog.
Nevertheless, even if defendant be a harborer and not an
owner, an injured plaintiff can maintain an action against a
harborer where the harborer has knowledge of the dog’s vicious
propensities.
See 3 Restatement of the Law 2d, Torts (1976) 11,
Sections 507-514.
Betty Ann Peyton, a volunteer and board member of MCHS,
testified that MCHS received a call on August 21, 1998, that an
unlicensed male, Norwegian Elkhound had bitten a child.
subsequently recovered the dog.
On September 17, 1998, an adult
Norwegian Elkhound from MCHS bit plaintiff.
euthanized.
MCHS
The dog was then
Peyton testified that although she did not know
whether the dog that bit plaintiff was the one that had bitten
the child, those are the only records that MCHS had regarding a
Norwegian Elkhound.
Sgt. Crabtree testified that she did not have knowledge of
the documentation from MCHS regarding a Norwegian Elkhound.
However, Sgt. Crabtree also testified that plaintiff’s cell mate
reported to her that the dog had lunged at plaintiff.
Plaintiff
also testified that he informed her that the dog had lunged at
him.
Defendant’s general rules for the Pound Puppies Program
provide: “Notify the Correctional Counselor/Unit Manager
immediately if the dog shows any aggressive behavior toward any
person.”
Assuming, arguendo, that defendant did not have notice
of the dog’s history from MCHS, plaintiff and his cell mate both
notified Sgt. Crabtree, Sgt. Campbell and CO Smith that the dog
had lunged at plaintiff.
At that point, defendant should have
Case No. 2000-02755
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DECISION
taken the dog from plaintiff and returned it to MCHS, as was done
with the Dalmatian.
The greater weight of the evidence shows
that defendant had actual notice of the vicious propensity of the
dog, and its failure to remove the dog from the program
constitutes a breach of ordinary care towards plaintiff.
That
breach proximately caused plaintiff’s injuries.
Defendant alleges that plaintiff’s damages were proximately
caused by his own wrongful acts and omissions because Sgt.
Crabtree offered to return the dog to MCHS but that plaintiff and
his cell mate wanted to continue working with the dog.
Ohio’s
comparative negligence statute, R.C. 2315.19, bars a plaintiff
from recovery if his or her own negligence is greater than
defendant’s.
“Contributory negligence” means “any want of
ordinary care on the part of the person injured, which combined
and concurred with the defendant’s negligence and contributed to
the injury as a proximate cause thereof, and as an element
without which the injury would not have occurred.”
v. DeSilva (1991), 77 Ohio App.3d 278, 290.
Joyce-Couch
After reviewing all
the evidence and evaluating the credibility of the witnesses, the
court finds that Sgt. Crabtree’s testimony regarding plaintiff’s
desire to continue working with the dog lacks credibility and was
not substantiated by either Sgt. Campbell or CO Smith.
Defendant
has not produced any other specific instance of plaintiff’s
conduct that constitutes contributory negligence in this case.
Therefore, judgment shall be rendered in favor of plaintiff on
his common-law theory of negligence.
Case No. 2000-02755
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DECISION
___________________________________
RUSSELL LEACH
Judge
[Cite as Pickett v. Ohio Dept. of Rehab. & Corr., 2001-Ohio3960.]
IN THE COURT OF CLAIMS OF OHIO
LATTIMORE PICKETT
:
Plaintiff
:
CASE NO. 2000-02755
v.
:
JUDGMENT ENTRY
:
Judge Russell Leach
DEPARTMENT OF REHABILITATION
AND CORRECTION
:
Defendant
: : : : : : : : : : : : : : : : :
This case was tried to the court on the sole issue of
liability.
The court has considered the evidence, and for the
reasons set forth in the decision filed concurrently herewith,
judgment is rendered in favor of plaintiff in an amount to be
determined after the second phase of the trial dealing with the
issue of damages.
The court shall issue an entry in the near
future scheduling a date for the trial on the issue of damages.
________________________________
RUSSELL LEACH
Judge
Entry cc:
Richard F. Swope
6504 E. Main Street
Reynoldsburg, Ohio 43068
Tracy Greuel
65 East State St., 16th Fl.
Columbus, Ohio 43215
Attorney for Plaintiff
Assistant Attorney General
HTS/cmd
Filed 12-27-2001
Jr. Vol. 690, Pg. 197
To S.C. reporter 2-4-2002
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