MEMORANDUM

To: Sue Attorney, Attorney at Law

From: Mariah Kinman

Re: our client, Sandy Manning

Date: October 12th, 2020

I. Issues

1.) Under Ohio’s revised code section 955.28 is a landlord considered lawfully

responsible if a tenant’s dog escapes from an opening in the backyard fence in

which the dog was left to roam around freely?

2.) Under Ohio’s revised code section 955.28 is it considered to be provocation when

the mailman is yelling for the dog to leave which results in the dog to attack?

3.) Under Ohio’s revised code section 955.28 is a dog owner held liable for damages

sustained by a mailman bitten by a dog with no known previous history of

viciousness?

4.) Under Ohio’s revised code section 955.28, is it negligence when a fence that is

supposed to contain a dog left opened and the dog escapes the yard. Does the dog

owner owe a duty of care to the mailman to further restrain and control her dog

and prevent future injuries from the dog?

Sandy Manning lives in a single-family home in the gaslight district of Clifton. Ms.

Manning also owns and leases the single-family house immediately behind her

property. Each property has a large backyard which is enclosed by a privacy fence.

Between the two fences there is a door so that way Ms. Manning and her tenant’s can

pass into the other’s yard when the door is unlocked.

The current tenant of the leased property is Callie Calypso. Ms. Calypso is Ms.

Manning’s sister. Ms. Calypso is moved into property about six months ago when she

initiated divorce proceedings against her husband. Ms. Calypso pays rent, but Ms.

Manning retains a key to her sister’s house and comes and goes freely.

Ms. Calypso has two large dogs and she allows those dogs to run freely through

her backyard which is fenced in. Given the familial relationship between the sisters

the door between the backyard is often left open so they can freely visit each other.

About three weeks ago, one of the dogs passed through an open gate on Ms.

Manning’s property and was left to freely wander the neighborhood for several hours

unattended. While out wandering the dog, named Mr. Bigglesworth, approached a

mailman down the street. The mailman, Mr. Suds, has a strong fear of dogs. When the

dog approached Mr., Suds began yelling for it to leave. The dog, Mr. Bigglesworth

then bit Mr. Suds which resulted in significant injury to Mr. Suds leg.
III. Analysis

A. Lawfully on property

The statute dealing with a dog bite liability in the state of Ohio is ORC 955.28,

which states in part, a dog that is chasing or approaching in a menacing fashion or

apparent attitude of attack, that attempts to bite or otherwise endanger, or that

kills or injures a person or a dog that chases, threatens, harasses, injures, or kills

livestock, poultry, other domestic animal, or other animal, that is the property of

another person, except a cat or another dog, can be killed at the time of that

chasing, threatening, harassment, approaching, attempt, killing, or injury. If, in

attempting to kill such a dog, a person wounds it, the person is not liable to

prosecution under the penal laws that punish cruelty to animals. Nothing in this

section precludes a law enforcement officer from killing a dog that attacks a

police dog as defined in section 2921.321 of the Revised Code.

B. Unlawful Trespass

This code (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 criminal trespass or another

criminal offense other than a minor misdemeanor on the property of the owner,

keeper, or harborer, or was committing or attempting to commit a criminal

offense other than a minor misdemeanor against any person, or was teasing,

tormenting, or abusing the dog on the owner's, keeper's, or harborer's property.

Additionally, 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 if the injury,

death, or loss was caused to the person or property of an individual who, at the

time of the injury, death, or loss, was on the property of the owner, keeper, or

harborer solely for the purpose of engaging in door-to-door sales or other

solicitations regardless of whether the individual was in compliance with any

requirement to obtain a permit or license to engage in door-to-door sales or other

solicitations established by the political subdivision in which the property of the

owner, keeper, or harborer is located, provided that the person was not

committing a criminal offense other than a minor misdemeanor or was not

teasing, tormenting, or abusing the dog.

C. Common Law Strict Liability

Ohio is a strict liability state, meaning that it has a dog bite statute that has

eliminated the common law’s “one bite rule”. The traditional doctrine that holds a

person liable for harm inflicted by a domestic animal is referred to as “scienter”.

As it applies to dog bites, this doctrine holds that a victim can recover

compensation from the owner, harborer, or keeper of a dog if (a) the dog

previously bit a person or acted like it wanted to, and (b) the defendant was aware

of the dog’s previous conduct. If either of those conditions are not met, however,

the victim cannot employ this doctrine as a ground for recovery. Dog bite statutes

impose liability on dog owners and others under a variety of other legal doctrines

including negligence, premises liability, nuisance, and negligence per se for a

violation of an animal control law such as a leash law. A law prohibiting dogs

from being at large or a law prohibiting dogs from trespassing. An emerging

begun. If the one bite rule or any other doctrine works against a victim, therefore,

another might support his claim for compensation. The state of Ohio is classified

as a statutory strict liability state. Its dog bite statute makes a dog owner,

harborer,or keeper liable whenever his dog injures, bites, or causes a loss to a

person or to the property of a person this includes the first time. The statute does

not apply if the victim was trespassing, committing or attempting to commit a

crime or was teasing, tormenting or abusing the dog on the owner’s, keeper’s or

harborer’s property. A suit for damages resulting from dog bites can be instituted

under the statute, the common law, or both at the same time.

Examples;Warner v. Wolfe (1964), 176 Ohio St. 389, 392-393. Bowman v. Stott,

2003 -Ohio- 7182 (Ohio App. Dist.9 12/31/2003). Khamis v. Everson (1993), 88

Ohio App.3d 220, 227.

An owner is the person to whom the dog belongs to.

A keeper is a person who has physical charge or care of the dog.

A harborer is someone who has possession and control of the premises where the

dog lives, and silently acquiesces to the dog’s presence.

D. Common Law Negligence

Ohio permits a dog bite victim to recover compensation on the grounds of

negligence. Negligence is defined as the lack of ordinary care; that is, the absence

of the kind of care a reasonably prudent and careful person would exercise in

similar circumstances. If a person’s conduct in a given circumstance doesn’t

person is negligent.

To recover compensation on the ground of negligence in Ohio, however, the

victim must prove the elements of the one bite rule. To prevail on a common law

negligence claim, the victim must show that the defendant harbored the dog with

knowledge of its vicious tendencies. " Webb v. Prout, 2006 -Ohio- 4792 (Ohio

App. Dist.5 09/05/2006), citing Burgess v. Tackas (1998), 125 Ohio App.3d 294,

297, 708 N.E.2d 285. Similarly, in Bowman v. Stott, 2003 -Ohio- 7182 (Ohio

App. Dist.9 12/31/2003), under 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 the dog’s viciousness; (4) the defendant was negligent in keeping the dog. "

Bowman v. Stott, 2003 -Ohio- 7182 (Ohio App. Dist.9 12/31/2003), citing Flint,

80 Ohio App.3d at 25-26.

IV. Conclusion

In consideration the owner of the dog is to be held responsible in damages for the

injuries proclaimed to happen to Mr. Suds the mailman. The owner Ms. Calypso

is found liable as she is the rightful owner to the dog, the dog was her

responsibility to maintain, and Mr. Suds was doing his job when the attack took

place and was not found doing anything harmful or provoking the dog during the

time of the attack.

As far as common law strict liability and common law negligence, it does not

appear that Ms. Manning the landlord would have any cause of action with the
 attack. If Ms. Manning were to file under a claim under either one, Ms. Calypso

could likely file and receive summary disposition.

VI. Recommendations

It is recommended that depositions be taken with both Mr. Suds, and Ms. Calypso, as

well as perhaps Ms. Calypso’s sister Ms. Manning who is also the landlord of where

the dog lives, to determine the extent of the previous attack against Mr. Suds with the

owner of the dog and the likelihood that Mr. Suds would have still felt endangered if

he were not yelling at the dog. Further research should be done regarding the

definition of provocation.

Regarding common law strict liability and negligence, depositions from family

members and family friends pertaining to the disposition of the dog could be used to

prove Ms. Calypso’ statements that she had not know the dog to behave aggressively

on previous occasions.