Dog Bite Victim May Sue for Statutory Damages and Common Law Negligence In the Same Case

Beckett v. Warren, Slip Opinion No. 2010-Ohio-4.
Summit App. No. 23909, 2008-Ohio-4689. Certified question answered in the negative, and judgment of the court of appeals affirmed.
Moyer, C.J., and Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
Lanzinger, J., concurs in judgment only.
Pfeifer and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4.pdf

(Jan. 6, 2010) The Supreme Court of Ohio ruled today that a plaintiff may, in the same case, pursue claims for dog bite injury under both the state’s specific dog bite statute, R.C. 955.28, and common law negligence. The court’s 5-2 decision, which affirmed a ruling by the 9th District Court of Appeals, was authored by Justice Evelyn Lundberg Stratton.

The case involved a minor child who suffered injuries to her head and scalp when she was mauled by a dog owned by Richard Warren and Mary Wood while she was a visitor in their home. The child’s mother, Yoshanta Beckett, filed suit against Warren and Wood, asserting a strict liability claim under R.C. 955.28, a provision of state law that allows a person who is injured by another person’s dog to recover damages from the dog’s owner without proving that the owner knew the dog was dangerous or that the owner acted negligently in failing to prevent the attack. Strict liability claims asserted under the statute are limited to recovery of compensatory damages (i.e., the cost of medical treatment, lost wages and other actual losses suffered as a result the dog attack).

Beckett’s complaint also asserted a common law negligence claim, seeking both compensatory and punitive damages from Warren and Wood based on an allegation that their dog had attacked another person a few weeks earlier, and that the owners therefore knew the dog was dangerous but failed to take precautions to protect her daughter.

During pretrial proceedings, the trial judge ruled that Beckett could not pursue both her statutory and common law causes of action, and must elect to prosecute either one or the other. Over Beckett’s repeated objections, the case proceeded to trial on only the statutory claim for which no punitive damages were available, which precluded Beckett from presenting evidence of the previous dog attack. The jury returned a verdict in favor of Beckett, awarding compensatory damages totaling $5,000. Beckett sought a new trial, arguing that the damages award was inadequate and that the judgment was not sustained by the weight of the evidence. The trial court denied the motion.

Beckett appealed, arguing that the trial court erred in refusing to allow her to simultaneously pursue recovery under both the strict liability statute and a common law claim of negligence. The 9th District Court of Appeals reversed the trial court’s judgment and remanded the case for a new trial in which Beckett would be permitted to pursue both her statutory and common law causes of action. The 9th District subsequently certified that its ruling was in conflict with a 1983 decision of the 6th District Court of Appeals. The Supreme Court agreed to review the case to resolve the conflict between appellate districts, and also agreed to consider a discretionary cross-appeal on a closely related proposition of law.

In today’s decision, Justice Stratton wrote: “There are two bases for recovery in Ohio for injuries sustained as a result of a dog bite: 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 viciousness. ... In a common law action for bodily injuries caused by a dog, as in any other common law tort action, punitive damages may be awarded.”

“R.C. 955.28 ... imposes strict liability upon the owner, keeper, or harborer of a dog ‘for any injury, death, or loss to person or property that is caused by the dog’ unless the injured individual was trespassing or committing a criminal offense other than a minor misdemeanor on the property. ... The statutory cause of action ‘eliminated the necessity of pleading and proving the keeper’s knowledge of the dog’s viciousness.’ ... Consequently, in an action for damages under R.C. 955.28, the plaintiff must prove (1) ownership or keepership [or harborship] of the dog, (2) whether the dog’s actions were the proximate cause of the injury, and (3) the monetary amount of the damages. ... In an action brought under the statute, punitive damages are not recoverable. ... Thus, the defendant’s knowledge of the dog’s viciousness and the defendant’s negligence in keeping the dog are irrelevant in a statutory action.”

With regard to the relationship between the statutory and common law causes of action, Justice Stratton cited the Supreme Court’s 1964 holding in Warner v. Wolfe that R.C. 955.28 “creates a new and different cause of action in no way dependent upon common-law principles and does not abrogate the common-law right of action for damage or injury caused by a dog. A suit may be instituted either under the statute or at common law.” While the trial court in this case interpreted the language of the Warner decision as requiring a plaintiff to choose between the two available causes of action, Justice Stratton wrote: “We disagree. Our focus in ... Warner was not on whether the statutory and common law claims for dog bite injuries could be pursued simultaneously, but rather whether the statutory cause of action abrogated the common law cause of action, which we held it did not. ... There is no language in R.C. 955.28 to indicate that it was intended to be the sole cause of action for personal injuries sustained from a dog. Nor is there any language in the statute to indicate that a plaintiff is required to elect between pursuing a common law action or a statutory action at trial. Rather, we must conclude that the statute was enacted to protect the public and hold owners strictly liable for the actions of their dogs without permitting ‘one free bite.’ Thus, the statute itself does not preclude a simultaneous common law action for damages for bodily injuries caused by a dog.”

In rejecting the defendants’ argument that allowing statutory and negligence claims to be argued to the same jurors would result in confusion about to which cause of action various items of evidence should be applied, Justice Stratton wrote: “When the plaintiff pursues both a statutory and common law claim for bodily injuries caused by a dog, a judge can easily instruct the jury that if it finds no evidence of the defendant’s knowledge of the dog’s viciousness, then only compensatory damages under the statutory cause of action are available. In that case, the plaintiff is entitled to compensatory damages to be made whole under the intent of the statute. ... (A) judge can just as easily instruct the jury that if it finds that the plaintiff proved that the defendant had knowledge of the dog’s viciousness and kept the dog in a negligent manner, the jury may award the additional remedy of punitive damages under the common law action. Compensatory damages remain the same under either theory of recovery, i.e., there is no double recovery. The remedies are not inconsistent under the law.”

Justice Stratton’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Maureen O’Connor and Robert R. Cupp. Justice Judith Ann Lanzinger concurred in judgment only.

Justice Terrence O’Donnell entered a dissent that was joined by Justice Paul E. Pfeifer. Justice O’Donnell wrote that by departing from the Court’s clear holding in Warner v. Wolfe that a plaintiff in a dog bite may bring suit “‘either under the statute or at common law’ ... The majority chooses to abandon our precedent and forge a new trail, throwing these cases to the dogs.”

“It makes no sense to have a trial court judge explain to jurors the law of two inconsistent theories of recovery, and then instruct them to apply the law of one to some facts and the law of another to other facts while ignoring the facts relating to the first rule of law,” wrote Justice O’Donnell. “It is logically inconsistent to tell a jury to consider a dog’s vicious propensity for a common-law negligence claim and, at the same time, instruct the same jurors to ignore that evidence in connection with evidence relating to a statutory claim.”

Contacts
Michael J. O’Shea, 440.241.0011, for Yoshanta Beckett et al.

Donald P. Wiley, 330.499.6000, for Richard Warren et al.

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