THOMAS BROWN, et al. Appellant
YVONNE TERRELL, et al. Appellee
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.
R. MORWAY and DAVID P. STADLEY, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
A. TEODOSIO, PRESIDING JUDGE.
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.
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.
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.
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.
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
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.
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 ...