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Brown v. Terrell

Court of Appeals of Ohio, Ninth District, Summit

June 27, 2018

THOMAS BROWN, et al. Appellant
v.
YVONNE TERRELL, et al. Appellee

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2016-07-2939

          JESSICA M. BACON, Attorney at Law, for Appellant.

          PAUL R. MORWAY and DAVID P. STADLEY, Attorneys at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO, PRESIDING JUDGE.

         {¶1} Plaintiff-Appellant, Thomas Brown, appeals from the order of the Summit County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee, Yvonne Terrell ("Yvonne"). This Court affirms.

         I.

         {¶2} In February of 2016, Mr. Brown's seven-year-old son ("T.L.") was playing ball outside with his sister on their driveway. At some point, the ball rolled into a space close to where the next-door neighbor's pit bull was chained. The dog broke free from its chain and attacked T.L. The dog bit through T.L.'s ankle and fractured the bone, which required surgery and implants. The owner of the dog, Territa Terrell ("Territa"), lived next door at 758 Kipling Street, Akron, Ohio. Territa's grandmother, Yvonne, co-owns the house at 758 Kipling Street with her brother, but neither of the two siblings has lived there recently. Yvonne permits Territa to live there, but no written lease agreement exists. Territa rarely pays rent, but does pay for utilities at the house. Yvonne pays for homeowners' insurance and was initially paying a friend to perform maintenance on the property, but at some point Territa took over the maintenance responsibilities.

         {¶3} Mr. Brown filed a personal injury complaint on behalf of his son against Territa and Yvonne for both common law negligence and strict liability, seeking damages for medical expenses and pain and suffering as a result of the dog bite. He alleged that Territa owned the dog while Yvonne kept or harbored the animal. Yvonne filed a motion for summary judgment claiming that she was not the owner, keeper, or harborer of the dog. Allstate Indemnity Company ("Allstate") intervened as a third-party defendant and filed its own motion for summary judgment, claiming no duty to defend or indemnify Territa under the landlord insurance policy issued to Yvonne. The trial court granted summary judgment in favor of both Yvonne and Allstate.

         {¶4} Mr. Brown now appeals from the trial court's order granting summary judgment and raises one assignment of error for this Court's review. On appeal, he only challenges the granting of summary judgment in favor of Yvonne.

         II.

         ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ON THE ISSUE OF HARBORER WHEN PLAINTIFF PRESENTED EVIDENCE INDICATING THAT YVONNE TERRELL CONTROLLED THE PREMISES WHERE THE DOG RESIDED AND ACQUIESCED TO THE DOG'S PRESENCE.

         {¶5} In his sole assignment of error, Mr. Brown argues that the trial court erred in granting summary judgment in favor of Yvonne because he set forth evidence creating a genuine issue of material fact regarding whether Yvonne was a harborer of the dog and the court improperly weighed the evidence presented. We disagree.

         {¶6} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56 when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977), citing Civ.R. 56(C). A court must view the facts in the light most favorable to the nonmoving party and must resolve any doubt in favor of the nonmoving party. Murphy v. Reynoldsburg,65 Ohio St.3d 356, 358-359 (1992). A trial court does not have the liberty to choose among reasonable ...


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