[Cite as Jamison v. Stark Cty. Bd. of Commrs., 2014-Ohio-4906.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JESSICA L. JAMISON : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2014CA00044
BOARD OF STARK COUNTY :
COMMISSIONERS, ET AL :
: OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2013CV01528
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 3, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
DAVID SPALDING RICHARD NICODEMO
157 Wilbur Drive N.E. ROSS RHODES
North Canton, OH 44720 110 Central Plaza South, Suite 510
Canton, OH 44702
[Cite as Jamison v. Stark Cty. Bd. of Commrs., 2014-Ohio-4906.]
Gwin, P.J.
{¶1} Appellant appeals the September 24, 2013 judgment entry of the Stark
County Common Pleas Court granting appellees’ motions for summary judgment.
Facts & Procedural History
{¶2} In February of 2013, appellant Jessica Jamison (“Jamison”) began doing
volunteer work at the Stark County Dog Pound in order to fulfill one of the requirements
for a class she was taking at Mount Union College. On March 7, 2013, appellant
selected a pit bull being housed at the dog pound for a training exercise. Appellant was
bitten by the pit bull during a “clicker training” exercise.
{¶3} Appellant filed a complaint on June 6, 2013, alleging several causes of
action. In Count I, appellant moves for declaratory judgment as to the liability of
appellee Stark County Board of Commissioners (“Board”) and Stark County Dog
Warden’s Department as to whether R.C. 955.28(B) imposes strict liability on the Board
and a finding that said statute does not contain an exception for governmental or
sovereign immunity. In Count II of appellant’s complaint, appellant seeks declaratory
judgment as to the strict liability of appellees Reagan Tetreault (“Tetreault”) and Jane
Doe pursuant to R.C. 955.28(B) as keepers and/or harborers of the pit bull at the time of
the incident. In Count III, appellant alleges that the actions of the appellees in
permitting appellant to be exposed to the pit bull while performing her volunteer work at
the dog pound was in bad faith and constituted wanton and/or reckless conduct. In
Count IV, appellant asserts claims for personal and bodily injury based on principles of
common law negligence.
Stark County, Case No. 2014CA00044 3
{¶4} The trial court granted a motion to dismiss by the Stark County Dog
Warden’s Department based upon the fact that the Stark County Board of
Commissioners, also a named party, was the proper party to the action. Appellees filed
a motion to dismiss Counts I, II, and III, which the trial court denied. On August 7, 2013,
appellant filed a motion for summary judgment and for declaratory judgment as to
Counts I and II of her complaint. Appellant argued that there are no permissible
defenses to liability in R.C. 955.28(B) other than what is specifically provided in the
statute and thus sovereign immunity is not an exception to liability under R.C.
955.28(B). On August 14, 2013, the Board moved for summary judgment as to all
counts of the complaint and appellees Tetreault and Jane Doe moved for summary
judgment as to Counts I, II, and II of the complaint and partial summary judgment as to
Count IV, except as it relates to bad faith, wanton, or reckless conduct. Appellees
argued that R.C. 955.28(B) does not specifically impose liability on political subdivisions
or their employees and thus they are immune from liability as the running of the dog
pound is a governmental function.
{¶5} The trial court issued a judgment entry on September 24, 2013 and stated
that there is no dispute that the Board is a political subdivision for purposes of R.C.
2744.02 or that holding dogs at the Stark County Dog Pound is a governmental function
pursuant to R.C. 2744.02(A)(1). The trial court found R.C. 955.28(B) does not
expressly impose liability on a political subdivision and thus the Board is immune from
liability. Further, with regards to the individual employees, that R.C. 955.28(B) does not
expressly impose liability on employees of a political subdivision to waive immunity
pursuant to R.C. 2744.03(A)(6)(c). The trial court found appellant’s argument as to the
Stark County, Case No. 2014CA00044 4
strict liability of R.C. 955.28(B) to be without merit. The trial court found there was a
genuine issue of material fact with regard to whether Tetreault and Jane Doe acted with
malicious purpose, bad faith, or in a wanton or reckless manner. On February 10, 2014,
appellant filed a motion to dismiss Count III, bad faith and wanton and/or reckless
conduct, with prejudice. The trial court granted the motion to dismiss on February 12,
2014. Appellant appeals the September 24, 2013 judgment entry and assigns the
following as error:
{¶6} “I. THE TRIAL COURT FAILED TO ADDRESS APPELLANT’S
ARGUMENT THAT APPELLEES ARE STRICTLY LIABLE FOR MS. JAMISON’S
INJURIES UNDER R.C. 955.28 AND ADDITIONALLY FAILED TO ADDRESS THE
CONFLICT WHICH EXISTS BETWEEN R.C. 955.28 AND R.C. 2744.01 ET SEQ.,
PURSUANT TO THE UNCONTROVERTED FACTS OF THIS CASE.
{¶7} "II. THE TRIAL COURT FAILED TO RECOGNIZE THAT R.C. 955.28(B)
CONSTITUTES AN EXCEPTION TO SOVEREIGN IMMUNITY UNDER R.C.
2744.03(A)(6)(C), WITH REGARD TO EMPLOYEES OF A POLITICAL SUBDIVISION.”
Summary Judgment
{¶8} Civ.R. 56 states, in pertinent part:
Summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written
stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. No
Stark County, Case No. 2014CA00044 5
evidence or stipulation may be considered except as stated
in this rule. A summary judgment shall not be rendered
unless it appears from the evidence or stipulation, and only
from the evidence or stipulation, that reasonable minds can
come to but one conclusion and that conclusion is adverse
to the party against whom the motion for summary judgment
is made, that party being entitled to have the evidence or
stipulation construed mostly strongly in the party’s favor. A
summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a
genuine issue as to the amount of damages.
{¶9} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
(1981). The court may not resolve any ambiguities in the evidence presented. Inland
Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474
N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301,
733 N.E.2d 1186 (6th Dist. 1999).
{¶10} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court. Smiddy v. The
Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review
Stark County, Case No. 2014CA00044 6
the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d
1243.
{¶11} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the
record which demonstrates absence of a genuine issue of fact on a material element of
the non-moving party’s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264
(1996). Once the moving party meets its initial burden, the burden shifts to the non-
moving party to set forth specific facts demonstrating a genuine issue of material fact
does exist. Id. The non-moving party may not rest upon the allegations and denials in
the pleadings, but instead must submit some evidentiary materials showing a genuine
dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791
(12th Dist. 1991).
I.
{¶12} Appellant first argues that the Board is strictly liable for her injuries
pursuant to R.C. 955.28(B). Specifically, that the immunity in R.C. 2744 applies to “acts
or omissions” of a political subdivision and since R.C. 955.28(B) is not based upon an
“act or omission” and instead is based upon strict liability, R.C. 2744 immunity is not
applicable. Appellant concludes that R.C. 2744 immunity applies only to negligent or
intentional acts, but not strict liability statutes. We disagree.
{¶13} At common law, the keeper of a vicious dog could not be liable for
personal injury caused by the dog unless the keeper knew of the dog’s vicious
propensities. Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624.
The strict liability statute of R.C. 955.28(B) “eliminated the necessity of pleading and
Stark County, Case No. 2014CA00044 7
proving the keeper’s knowledge of the dog’s viciousness.” Id. Consequently, in an
action for damages under R.C. 955.28(B), the plaintiff must prove (1) ownership,
keepership, or harborship of the dog; (2) proximate cause; and (3) damages. Id. The
defendant’s knowledge of the dog’s viciousness and the defendant’s negligence in
keeping the dog are irrelevant in a statutory action.” Id.
{¶14} R.C. 2744.02(A) provides that a political subdivision is “not liable in
damages in a civil action for injury * * * to person or property allegedly caused by any
act or omission of the political subdivision or an employee of the political subdivision in
connection with a governmental or proprietary function.” In this case, there is no
dispute that the Board is a political subdivision or that the injury occurred in connection
with a governmental function of the dog pound. Further, strict liability is “liability that
does not depend on actual negligence or intent to harm, but that is based on the breach
of an absolute duty to make something safe.” Black’s Law Dictionary (9th ed. 2009).
Strict liability is also termed “liability without fault.” Sikora v. Wenzel, 88 Ohio St.3d 493,
2000-Ohio-406, 727 N.E.2d 1277.
{¶15} The reference to an “act or omission” in R.C. 2744.02(A) does not
summarily exclude all strict liability statutes from the general grant of immunity in R.C.
2744. While strict liability removes the necessity of proving the act or omission was
negligent (i.e. fault) and, with regards to the dog bite statute, removes the necessity of
proving the defendant’s knowledge of a dog’s viciousness, it does not remove the
requirement that there must be an act or omission for liability to be imposed. As noted
above, to succeed under R.C. 955.28(B), a plaintiff must still prove that the defendant
kept, harbored, or owned the dog, which all constitute “actions.” Further, a plaintiff must
Stark County, Case No. 2014CA00044 8
also prove that the dog proximately caused the injuries. Proximate cause is defined as
“some reasonable connection between the act or omission of the defendant and the
damage the plaintiff has suffered.” R.H. Macy & Co. Inc. v. Otis Elevator Co., 51 Ohio
St.3d 108, 554 N.E.2d 1313 (1990). Accordingly, appellant’s argument that there is no
“act” or “omission” as required for R.C. 2744 immunity due to the strict liability of R.C.
955.28(B) is not well-taken.
{¶16} In her first assignment of error, appellant also argues that R.C. 2744 and
R.C. 955.28(B) cannot be reconciled and, when a conflict exists, the more specific
statute of R.C. 955.28(B) is controlling. We disagree.
{¶17} “It is a well-settled rule of statutory interpretation that statutory provisions
be construed together and the Revised Code be read as an interrelated body of law.”
Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522.
R.C. 1.51 provides that when statutory provisions are in conflict, “they shall be
construed, if possible, so that effect is given to both.” When construing a statute, the
paramount concern is “the legislative intent in the statute’s enactment, and to discern
that intent, we read the words and phrases in context according to the rules of grammar
and common usage.” Wilson v. Kasichi, 134 Ohio St.3d 221, 2012-Ohio-5367, 981
N.E.2d 814.
{¶18} R.C. 2744.02(A)(1) establishes a grant of general immunity to political
subdivisions and R.C. 955.28(B) imposes strict liability on an owner, keeper, or harborer
of a dog for an injury caused by the dog. On their face, utilizing the common usages of
the words and phrases in the two statutes, there is no conflict between R.C. 2744.02(A)
and R.C. 955.28(B). R.C. 2744.02(B)(5), also included in the Political Subdivision Tort
Stark County, Case No. 2014CA00044 9
Liability Act, creates an exception to immunity “when civil liability is expressly imposed
upon the political subdivision by a section of the Revised Code.” Thus, only when a
statute imposing liability contains such an express imposition of liability on political
subdivisions is it the “more specific” statute on the question of liability. R.C. 955.28(B)
does not have any language expressly creating liability upon a political subdivision.
Perry v. City of East Cleveland, 11th Dist. Lake No. 95-L-111, 1996 WL 200558 (Feb.
16, 1996). Accordingly, the statutory provisions can be construed together and read as
an interrelated body of law, giving effect to both R.C. 2744 and R.C. 955.28.
{¶19} Based on the foregoing, appellant’s first assignment of error is overruled.
II.
{¶20} Appellant argues the trial court erred in failing to recognize that R.C.
955.28(B) constitutes an exception to sovereign immunity under R.C. 2744.03(A)(6)(c)
with regards to employees of a political subdivision. We disagree.
{¶21} R.C. 2744.03(A)(6) provides immunity to an employee of a political
subdivision unless an exception found within R.C. 2744.03(A)(6)(a) through (c) applies.
R.C. 2744.03(A)(6)(c) provides that an employee may be liable if “[l]iability is expressly
imposed upon the employee by a section of the Revised Code.” This language is
identical to the language found in R.C. 2744.02(B)(5).
{¶22} When interpreting statutes, we must give words their ordinary and natural
meaning unless a different interpretation appears in the statute. Layman v. Woo, 78
Ohio St.3d 485, 678 N.E.2d 1217 (1997). The ordinary meaning of the word “expressly”
is “in direct or unmistakable terms; in an express manner; explicitly, definitely, directly.”
Butler v. Jordan, 92 Ohio St.3d 354, 2001-Ohio-204, 750 N.E.2d 554, quoting Webster’s
Stark County, Case No. 2014CA00044 10
Third New International Dictionary 803 (1986). A general imposition of liability is not
sufficient to impose liability pursuant to R.C. 2744.03(A)(6)(c). O’Toole v. Denihan, 118
Ohio St.3d 374, 889 N.E.2d 505 (2008). The Ohio Supreme Court has held that the
term “person” in a statute is too general to impose liability on an employee of a political
subdivision whereas a statute imposing liability on a “home” when “home” was defined
by the statute as specifically including homes run by the political subdivision and a
statute expressly imposing liability on specific, named, county employees (“school
teacher,” “school employee,” “school authority”) with regards to reporting child abuse
and neglect are sufficient to invoke the R.C. 2744.03(A)(6)(c) exception and impose
liability on the employees of the political subdivision. Id.; Cramer v. Auglaize Acres, 113
Ohio St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9; Campbell v. Burton, 92 Ohio St.3d 336,
2001-Ohio-206, 750 N.E.2d 539. Words which refer to an entire class which may
include employees of a political subdivision but do not expressly, explicitly, or directly
reference employees of a political subdivision are not sufficient to expressly impose
liability under R.C. 2744.03(A)(6)(c). Cramer v. Auglaize Acres, 113 Ohio St.3d 266,
2007-Ohio-1946, 865 N.E.2d 9; O’Toole v. Denihan, 118 Ohio St.3d 374, 889 N.E.2d
505 (2008).
{¶23} In this case, R.C. 955.28(B) uses the words “keeper, owner, or harborer”
without any reference to political subdivisions or their employees as the terms “keeper,
owner, or harborer” are not defined anywhere in Revised Code Section 955, entitled
“Dogs”. There is no indication in the language of Revised Code Section 955.28 that the
General Assembly has abrogated the immunity provided to employees of a political
subdivision with an express imposition of liability. R.C. 955.28(B) does not
Stark County, Case No. 2014CA00044 11
unmistakably, explicitly, or definitely state that an employee of a political subdivision is
liable. Without any express imposition of liability, the R.C. 2744.03(A)(6)(c) exception is
not triggered and appellees Tetreault and Jane Doe are entitled to immunity. Further,
the primary case cited by appellant is factually distinguishable from the case at hand
dealing with the operation of a dog pound as it arose in the context of the handling of a
police K-9 dog at home with a deputy sheriff. Hicks v. Allen, 11th Dist. Ashtabula No.
2005-A-0002, 2007-Ohio-693.
{¶24} Accordingly, appellant’s second assignment of error is overruled.
{¶25} Based on the forgoing, appellant’s assignments of errors are overruled
and the September 24, 2013 judgment entry of the Stark County Common Pleas Court
is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur