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Green v. Zack

Court of Appeals of Ohio, Fifth District, Richland

December 2, 2019

THOMAS KERRY GREEN, Plaintiff - Appellant
v.
MICHAELA SHEPHERD ZACK, Defendant and MICHAEL P. SHEPHERD, Defendant-Appellee

          Appeal from the Richland County Court of Common Pleas, Case No. 2018CV0162

          For Plaintiff-Appellant DAVID D. CARTO Weldon, Huston & Keyser, L.L.P.

          For Defendant-Appellee TODD M. ZIMMERMAN DANIEL J. MATUSICKY Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          BALDWIN, J.

         {¶1} Plaintiff-appellant Thomas Kerry Green appeals from the May 23, 2019 Judgment Entry of the Richland County Court of Common Pleas granting the Motion for Summary Judgment filed by defendant-appellee Michael R. Shepherd.

         STATEMENT OF THE FACT AND CASE

         {¶2} On March 13, 2016, appellant Thomas Kerry Green was bit by a large Great Dane while running recreationally along a public roadway known as Millsboro Road West in Richland County, Ohio. As he approached the house and property located at 3619 Millsboro Road West, a large Great Dane "came ripping off the porch" and attacked appellant, causing him to suffer severe lacerations, puncture wounds, loss of skin and muscle tissue, a compression fracture of his left tibial plateau and permanent scaring on his right forearm and left leg. Deposition of Thomas Kerry Green at 14-16, 36, 42-45.

         {¶3} The dog which attacked appellant was owned and kept at the premises by Michaela Shepherd Zack (hereinafter "Zack") who is appellee's daughter. The premises is a single family home. Appellee is the owner of the premises and his daughter had been living there under a verbal lease since September of 2015. During her deposition, Zack testified that she paid appellee, who did not live at the property, $685.00 a month in rent and paid the utilities. Deposition of Michaela Shepherd Zack at 9. The two did not have a written lease. Appellee paid the real estate taxes, mortgage payments and insurance premiums pertaining to the property. Zack testified that her father would visit her approximately once a week.

         {¶4} During his deposition, appellee testified that his daughter was buying the property on land contract. There was, however no written land contract between them. He further testified that she told him that the Great Dane, named Albert, had been involved in two other reported incidents where he had bitten and injured other people. One incident was in November of 2015 and the other in December of 2015. On or about November 15, 2015, a bite report was made to the Richland County Dog Warden about Albert and Albert was determined to be a dangerous dog under R.C. Section 955.11(A)(1)(a)(i). Zack was ordered to keep Albert restrained in compliance with the requirements of R.C. 955.22(D). Zack then installed a fence on the property. During her deposition, Zack testified that she discussed the two incidents with appellee and that he was aware that the Dog Warden had ordered that Albert be enclosed on the property. After the November 2015 incident, Zack also was ordered to be muzzled while off the premises. After someone told appellee that Albert had been labeled a dangerous dog, appellee spoke with Zack and asked her about her plans. According to him, Zack told him that she had talked to the Dog Warden and was told that she needed to keep Albert restrained. Appellee testified that when he went over to the premises, Albert was on a chain that was staked and was muzzled.

         {¶5} The following is an excerpt from appellee's deposition testimony:

         {¶6} A: My concern was that the person on the phone had told me the dog had been labeled a dangerous dog. So I asked her [Zack] what her plans were about the dog, and she said that the dog warden - she either told me the dog warden had been out and talked to her or it was on the telephone - - I can't remember - - and told her what needed to be done if she was going to keep the dog.

         That satisfied me. I had no control over what she was going to do with the dog and all of this. It was - - my name is on the house, but she's in charge. She can knock out a wall if she wants to.

         {¶7} Q: Were you concerned that, as the owner of the property, you wanted to make sure there wasn't something on the property that might cause harm to somebody else?

         {¶8} MR. ZIMMERMAN: Objection.

         {¶9} A: Something on the property?

         {¶10} BY MR. CARTO:

         {¶11} Q: Right.

         {¶12} A: ...


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