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Licking County Dog Warden v. Sendykar

Court of Appeals of Ohio, Fifth District, Licking

December 10, 2019

LICKING COUNTY DOG WARDEN Plaintiff-Appellee
v.
JAMES SENDYKAR Defendant-Appellant

          Appeal from the Licking County Municipal Court, Case No. 19 CVH 00495

         JUDGMENT: AFFIRMED

          For Plaintiff-Appellee: WILLIAM C. HAYES LICKING COUNTY PROSECUTOR CAROLYN J. CARNES

          For Defendant-Appellant: CHRIS BRIGDON

          Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          DELANEY, J.

         {¶1} Defendant-Appellant James Sendykar appeals the April 1, 2019 judgment entry of the Licking County Municipal Court. Plaintiff-Appellee is the Licking County Dog Warden.

         FACTS AND PROCEDURAL HISTORY

         {¶2} On February 10, 2019, Defendant-Appellant James Sendykar was issued a Notice of Dog Designation Status by Plaintiff-Appellee Licking County Dog Warden, which designated Sendykar's dog as dangerous. Sendykar appealed the designation to the Licking County Municipal Court and a bench trial was held on April 1, 2019. The following evidence was adduced at the bench trial.

         {¶3} On February 6, 2019, Joseph Carson, while employed by FedEx, delivered a package to a residence in Hebron, Ohio. The package was addressed to Carrie Sendykar, wife of Defendant-Appellant James Sendykar. This was the first time Carson had delivered a package to this residence. To deliver the package to the residence, Carson backed the FedEx truck half-way up the driveway, using his rear-view camera to guide him, instead of his side mirrors. On the property near the driveway, Sendykar had posted a sign that read, "DOG ON PREMISES CAUTION INVISIBLE DOG FENCE UPS/FEDEX DROP OFF →." The arrow on the sign pointed to the ground. The photograph of the sign was admitted as evidence. Carson testified he did not see the sign as he backed into the driveway.

         {¶4} Carson parked the truck in the driveway, picked up the package to be delivered, and opened the back door of the truck. When he opened the back door of the truck, Carson saw a dog on the property of the residence. The dog, named Garth, belonged to Sendykar. Carson exited the truck, took six steps, and looked down at the package in his hand to scan the package. As he was scanning the package, Garth bit Carson on the front of his left thigh. Simultaneously, the package scanner showed "dog bite" because a dog had previously injured another FedEx employee at that address.

         {¶5} After Garth bit Carson, Carson called his manager who instructed Carson to go to an urgent care facility. Carson put the package back on the truck. Carson's leg wound was treated at the urgent care facility. It did not require stitches. Carson, who had experience with dogs, testified the wound was a dog bite, not a dog scratch. A photograph of Carson's wound at the time of the incident was introduced as evidence. It showed two wounds, close together. The skin was broken and bloodied.

         {¶6} Carson contacted the Licking County Dog Warden to report the incident and Licking County Deputy Dog Warden Tyler Moore made contact with Carson at the urgent care facility. Deputy Moore took Carson's information and then drove to the residence to speak with Sendykar. Deputy Moore had previous knowledge of Garth stemming from an alleged dog bite that occurred to a FedEx driver on October 3, 2018. When Deputy Moore arrived at the residence, he observed Garth come out of the garage from a partially open garage door. The residence's property had an invisible fence. Deputy Moore stayed in his truck because Garth was barking and growling. Deputy Moore called Sendykar, who said he was out of town and his wife, Carrie Sendykar was not at home. Sendykar's son was at home and Sendykar contacted his son to tell him to come out and secure Garth. Deputy Moore told Sendykar's son about the incident and issued a quarantine notice.

         {¶7} At trial, Sendykar testified that Garth was a not a dangerous dog. He had never observed Garth being aggressive and he was gentle around children. He argued the wound suffered by Carson was a scratch from Garth's claws, not a bite. Sendykar contended the incident would not have happened if Carson had obeyed the sign Sendykar posted cautioning delivery persons about the presence of a dog on the property and where to drop off packages. Sendykar testified the sign was clearly visible to ...


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