Case of the Day – Tuesday, May 8, 2018

NO BUTTS ABOUT IT, THE DOG IS NOT RUNNING AT LARGE

Here at Tree and Neighbor Law blog, we get mail, like this letter:

Dear Blogger on All Things Tree and Neighbor Law:

My neighbor walks his dog past my house several times a   day.  He never has his dog on a leash, and it sometimes   runs through my front yard chasing squirrels.

The dog has never paid any attention to me or anything    else that is not a squirrel, and the owner cleans up after her, so it's not that. It is just that I think dogs      belong on leashes.

The other day, I leaned out of my front door and yelled   at him that his dog was supposed to be on a leash. He     explained that I was mistaken, and that the law only      required that he keep his dog under reasonable control.   I have to admit that the dog always comes when her owner                                                calls her, and she stops and sits on command.

                                              Still, it offends me that a dog should be unleashed,                                                    allowed to chase squirrels, and permitted to be so free. Isn’t my neighbor breaking the law?

                                                                       Signed, A Grumpy Neighbor

Hey, Grumpy Neighbor, we understand your complaint. Maybe that’s because we know who you are, inasmuch as you’re writing about our 40 lbs. of border collie mix, Winnie. Winnie cares not a whit about people, bicycles or baby strollers. If you’re not a varmint – coyote, raccoon, squirrel or especially a woodchuck – she will ignore you.

Notwithstanding that, Winnie inherited a lot of the typical border collie temperament and intelligence, being very attentive to commands (even to the extent of sitting on the tree lawn waiting for your signal that she may cross the street) and quite obedient. We and Winnie walk several miles every morning, exploring the fields, woodlands and streams behind the nearby hospital, and usually hit country trails later in the afternoon for another search for small game.

Come to think about it, Winnie’s better behaved than a lot of neighborhood kids. But no matter, Grumpy Neighbor, because watching her trot by while not being on a leash offends your sensibilities.

Still, we’re reasonable, so when you yelled through your screen door the other day that dogs are supposed to be on leashes, we researched the law to be sure that our recall was right. And it is. There is no law (at least where we live, your results may vary) specifying that dogs are to be kept on a leash. Instead, our local ordinance – like many – only prohibits dogs from running at large (and owners not cleaning up after them, but that’s another story).

But is Winnie “running at large” when she trots by with us right behind her, simply because she is not leashed? A very good question, deserving a look at what “running at large” is all about… which brings us to a mother suing her daughter over the misadventures of a three-legged goat. And, no, we did not make this up.

Moore v. Spencer, Case No. 06 CA 830 (Ct.App. Carroll Co., Sept. 12, 2007), 2007 Ohio App. LEXIS 4272. Susan and Wayne Moore were Floridians on a Christmas visit to their daughter and son-in-law in Ohio. Susan brought her puppy, a Cairn terrier (whom we’ll refer to as “Fido,” his actual name not being recorded in the decision). One morning, Susan and her daughter, Laura, went outside with the dog. Laura decided to let Marrif, her three-legged pet goat, out of its enclosure to play with the puppy. The goat and Fido had not previously met, but Laura assured her mother that her goat played well with her friends’ dogs.

It was not to be. Instead of being friendly, Fido began to bark aggressively at Marrif the goat, and in response, the goat postured as though she intended to butt the plucky pup half way back to the Sunshine State. Susan swooped in to pick up the dog before it learned a sorry lesson from a three-legged goat, but as she bent down to grab her hound, Marrif rammed Susan’s right eye with her horn. Susan suffered significant injuries as a result.

This being America and all, Susan and Wayne promptly sued their own daughter and son-in-law. The kids subsequently won summary judgment after the trial court found that Susan had assumed the risk of her injury. Susan and Wayne appealed.

Held: Susan had no claim against her kids or the kid. She argued that her daughter and son-in-law were responsible because they were in violation of O.R.C. § 951.02. She also claimed that the evidence did not establish that she had assumed the risk.

Section 951.02 of the Ohio Revised Code provides that “no person, who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land…” Susan complained that that was exactly what Laura’s goat had been doing at the time of Susan’s injury, running at large. Because of this statutory violation, Susan contended, Laura was negligent per se, that is, negligent as a matter of law with no further showing of duty or breach necessary. For good measure, Susan alleged regular negligence as well, arguing that because the goat was loose and not penned or tied, Laura had violated the duty of care she owed to Susan when she released Marrif.

Marrif, however, was not “running at large” for purposes of the statute by its own terms, the Court ruled. The goat was on Laura’s property, not public property, at the time of the incident. The Court had previously defined “running at large” in a case concerning a dog, holding that “a dog is at large when a vagrant, when it runs at will, when it is absolutely beyond control or call and is acting on its own initiative, and under circumstances where there is no connection, physical or sympathetic, between the dog and the master…” A dog on its master’s premises is not a vagrant and is not running at large.

The Court said that O.R.C. 951.02 was “designed to prevent trespass by animals and was not to be for the benefit of highway travelers.” Negligence per se is only applicable in trespassing cases. Accordingly, if trespass is not at issue, a plaintiff must plead and establish negligence as it may otherwise arise from the ownership of a domestic animal. Susan admitted that the goat was on Laura’s own property at the time of the incident. Based on Susan’s own testimony, her reliance on O.R.C. 951.02 was misplaced.

Because she could not establish that her daughter violated a statute, and thus was negligent per se, Susan had to prove the existence of a duty, a breach of that duty, and an injury proximately resulting from the breach. To be sure, Laura owed her mother, who was her social guest, the duty to “exercise ordinary care not to cause injury by any act of the host or by any activities carried on by the host while the guest is on the premises… and to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.” However, Laura was not an insurer her guest’s safety.

In negligence cases raised against the owners of animals, liability is customarily determined by assessing whether the owner could have reasonably anticipated the event that resulted in injury. Here, nothing in the record established that Laura knew the tree-legged Marrif to be “a dangerous, aggressive or otherwise mischievous domestic animal.” Here, the Court observed, it appeared that the puppy Fido’s aggressive bark led to the escalation that resulted in the accident, not any depraved nature on the part of the goat.

Susan had visited her daughter’s property about once a year for about six years before the incident, and she admitted she never saw the goat act in an aggressive manner before. While she never saw the goat running loose unless Laura took it out, on a prior occasion they took Marrif for a walk up the road on a leash.

Based on the undisputed evidence, the Court said, it found that while Laura had a duty to exercise ordinary care and to warn of any known dangers on the premises, not a single fact tended to show that she could have reasonably anticipated this incident and her mother’s injury. Thus, she was not negligent.

– Tom Root

TNLBGray

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