[Cite as Anderson v. Centrone,
2024-Ohio-1021.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
WILLIAM T. ANDERSON, JR. : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2023CA00117
REGINA A. CENTRONE, ET AL :
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2022CV00366
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 18, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GEORGE ORYSHKEWYCH THOMAS J. CABRAL
6100 Oak Tree Boulevard DANIEL G. LONERGAN
Suite 200 1215 Superior Ave., 7th Floor
Independence, OH 44131 Cleveland, OH 44114
Stark County, Case No. 2023CA00117 2
Gwin, J.,
{¶1} Appellant appeals the August 25, 2023 judgment entry of the Stark County
Court of Common Pleas granting appellee’s motion for summary judgment.
Facts & Procedural History
{¶2} Appellee Roland Centrone is Regina Centrone’s father. Prior to 2019,
Regina moved in and out of appellee’s home. Regina and several of her dogs lived in
appellee’s home in January of 2019, including a dog named Bella. Appellee was angry
when Regina got Bella because appellee was already taking care of several of Regina’s
dogs. Appellee testified he, “didn’t want [Bella]. I didn’t like [Bella]” because Bella had
attacked appellee’s Jack Russell terrier. Appellee tried to control Bella by pulling back on
the dog’s leash, but Regina informed him he could not do that because Bella was
previously abused. Appellee felt that if he could not properly train the dog, the dog could
not stay in his home. Appellee told Regina that Bella was no longer welcome in his home.
{¶3} In the summer of 2019, Regina moved out of appellee’s home into an
apartment attached to a kennel where she worked. Appellee testified that, at that point,
Regina “knew the dog wasn’t allowed back in our house.”
{¶4} Appellant William T. Anderson, Jr. met Regina in August or September of
2020 via an online dating site. Approximately one year later, they moved in together at
appellant’s home that he owned in Rittman, Ohio. When Regina moved into appellant’s
home, she owned three dogs. Initially, the dogs did not come with her to appellant’s
home, as they stayed at the kennel where Regina worked. However, within several weeks
of Regina moving in, she brought the dogs to live with her and appellant at appellant’s
home.
Stark County, Case No. 2023CA00117 3
{¶5} Appellant had an eight-foot fence surrounding his back yard. Appellant
testified he would leave the back door open, and the dogs came and went “whenever they
wanted,” until it got cold out. Bella and the other dogs slept “wherever they wanted,” with
Bella usually sleeping with appellant and Regina in the bed. Bella was muzzled when she
was in the home, and was placed in a cage in the living room when she ate. Regina gave
the dog Xanax from the vet to help keep her calm.
{¶6} Regina told appellant Bella never attacked anyone but her. Appellant never
saw the dog act aggressively towards anyone other than Regina. Appellant witnessed
Bella attack Regina once prior to the incident at issue in this case. Appellant told Regina
she needed to get rid of the dog, but Regina did not want to. It was approximately two
weeks after Bella bit Regina that Bella bit appellant. During these two weeks, Bella
remained in appellant’s house with his permission. However, appellant told Regina she
needed to find another place for the dog. Regina informed appellant that appellee would
not let Bella in his home.
{¶7} The incident occurred on December 1, 2021. When appellant arrived home
from work, he and Regina sat on the couch with the dogs, watching television. Regina
got up from the couch. Bella rose up, and appellant felt Bella was going to attack Regina.
Thus, appellant grabbed Bella by the neck, picked Bella up, and tried to put her into her
cage. Appellant did get Bella into her cage, but she jumped out of the cage and was
nibbling at his foot while the muzzle was still on. Appellant does not know how it
happened, but the muzzle came off the dog. Bella then jumped on appellant and grabbed
him. Appellant began “tussling” with the dog. Appellant asked Regina to get the dog off
of him. However, Regina hit appellant with a baseball bat, appellant fell to the ground,
Stark County, Case No. 2023CA00117 4
and the dog “had its way with [appellant].” When she hit appellant with the bat, Regina
yelled that appellant “was killing her dog.” At that point, the dog began biting appellant’s
hands.
{¶8} Appellant testified that Regina told him to tell the police that the dogs were
fighting, and he broke it up. Appellant complied with Regina’s request, and told the sheriff
the dogs were fighting and he broke it up. Appellant had pins placed in his hand, and
eventually had to have his finger amputated.
{¶9} Appellant never saw appellee exert any control over Bella. In his mind,
when he was attacked, Regina was the owner of the dog. Appellant testified that no one
else was taking care of the dog except Regina.
{¶10} Appellee admitted that he signed the forms to obtain licenses for the dogs,
including Bella, on July 13, 2020 and January 5, 2021. The form states as follows, “I, the
undersigned, owner, keeper, or harborer of the dog(s) above, declare under penalty of
perjury the information is true and accurate to the best of my knowledge.” Bella was living
at the kennel, not at his residence, when appellee signed these license applications.
{¶11} When asked about the license applications, appellee stated, “all I did was
bought licenses for all the dogs because Regina didn’t have the money or the desire to
buy them.” Appellee continued, “I didn’t know if Regina was going to come back or not.
She was in and out of our house so many times. If she had come back, you know, in
October or something and didn’t have a license, we would get charged for it.”
{¶12} On March 15, 2022, appellant filed a complaint against appellee and Regina
for strict liability pursuant to R.C. 955.28, and common law negligence.
Stark County, Case No. 2023CA00117 5
{¶13} Appellee filed a motion for summary judgment on February 22, 2023. On
February 28, 2023, appellant filed a motion for partial summary judgment. The parties
filed responses and replies to the motions.
{¶14} The trial court issued a judgment entry on August 25, 2023 granting
appellee’s motion for summary judgment and denying appellant’s motion for partial
summary judgment. The trial court scheduled a bench trial for the remaining defendant,
Regina Centrone. Subsequently, appellant dismissed Regina Centrone from the case.
{¶15} Appellant appeals the August 25, 2023 judgment entry of the Stark County
Court of Common Pleas and assigns the following as error:
{¶16} “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY GRANTING
SUMMARY JUDGMENT IN FAVOR OF DEFENDANT/APPELLEE ROLAND
CENTRONE AND BY DENYING PLAINTIFF/APPELLANT’S MOTION FOR SUMMARY
JUDGMENT.”
Summary Judgment Standard
{¶17} Civil Rule 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 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
Stark County, Case No. 2023CA00117 6
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 most 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.
{¶18} A trial court should not enter 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).
{¶19} 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 the matter
de novo. Doe v. Shaffer,
90 Ohio St.3d 388,
2000-Ohio-186,
738 N.E.2d 1243.
Stark County, Case No. 2023CA00117 7
I.
{¶20} A plaintiff who suffers an injury as a result of a dog bite may, in the same
case, pursue both a strict liability claim under R.C. 955.28, and a common law negligence
claim. Beckett v. Warren, 124 Ohio St.3d 256,
2010-Ohio-4,
921 N.E.2d 624. An “owner”
is the person to whom a dog belongs. Webb v. Prout, 5th Dist. Richland No. 2005 CA
0124,
2006-Ohio-4792. A “keeper” of a dog has physical control or care of the dog, even
if that care and control is temporary.
Id. A “harborer” of a dog is one who has possession
and control of the premises where the dog lives, and silently acquiesces to the dog’s
presence.
Id.
Strict Liability
{¶21} In his complaint, appellant asserted a strict liability claim pursuant to R.C.
955.28. In both his summary judgment briefing and appellate brief, appellant states he is
“abandoning” the claim pursuant to R.C. 955.28. However, since appellant did not
dismiss this claim, the trial court addressed it in the summary judgment entry.
{¶22} In an action for damages under R.C. 955.28, the plaintiff must prove: (1)
ownership or keepership of the dog; (2) that the dog’s actions were the proximate cause
of the injury; and (3) damages. However, a “victim who owns, keeps, or harbors a dog
cannot recover for injuries inflicted by the dog on him or her” because R.C. 955.28 is
“intended to protect people who are not in a position to control the dog.” Redeye v.
Belohlavek, 8th Dist. Cuyahoga No. 87874, 2007-Ohio-85; Kircher v. Baugess, 12th Dist.
Madison No. CA2013-03-006,
2013-Ohio-4579 (injured keepers cannot avail themselves
of the strict liability protections within R.C. 955.28). In this case, there is no dispute that
appellant was a harborer and keeper of Bella because he exerted temporary control over
Stark County, Case No. 2023CA00117 8
the dog and was in possession and control of the premises where the dog lived.
Accordingly, appellant is not within the class of people that R.C. 955.28 was meant to
protect. The trial court did not commit error by granting appellee’s motion for summary
judgment on appellant’s statutory claim.
Common Law Negligence – Dog Bite
{¶23} Appellant first argues the trial court committed error in granting summary
judgment for appellee because there is a genuine issue of material fact as to whether
appellee was the owner of Bella based upon the fact that appellee signed the form to
obtain Bella’s dog license in 2021.
{¶24} Appellant seeks to essentially have this Court find that if an individual
applies for tags for a dog, they are automatically deemed an owner of the dog. We decline
to adopt such a broad rule, and find it is more appropriate to examine the facts and
circumstances specific to each case. However, even if we were to find there are genuine
issues of material fact due to the dog license application as to the ownership of Bella, we
find appellant cannot meet the four criteria necessary for a common-law action.
Accordingly, we find the trial court did not commit error in granting appellee’s motion for
summary judgment, regardless of whether appellee is considered an owner of Bella.
{¶25} Appellant additionally contends the trial court committed error in granting
summary judgment because he put forth some evidence that Regina was negligent in
keeping Bella. However, case law does not support appellant’s interpretation of what is
required to establish common law negligence in a dog bite case.
{¶26} The Supreme Court of Ohio addressed the standard for a common law
action for bodily injuries caused by a dog in Beckett v. Warren, 124 Ohio St.3d 256, 2010-
Stark County, Case No. 2023CA00117 9
Ohio-4,
921 N.E.2d 624. In a common law action for bodily injuries caused by a dog, a
plaintiff must show: (1) the defendant owned or harbored the dog; (2) the dog was vicious;
(3) the defendant knew of the dog’s viciousness; and (4) the dog was kept in a negligent
manner after the keeper knew of its viciousness.
Id.
{¶27} While appellant argues this language means that appellee himself does not
have to “keep” the dog, the other language contained in the case, and the citations in the
case, do not support appellant’s argument. When discussing whether a plaintiff can
pursue a claim for injury both pursuant to R.C. 955.28 and common law in one case, the
Supreme Court stated, “when the plaintiff pursues both a statutory and a common-law
claim … a judge can just as easily instruct the jury that if it finds that the plaintiff proved
that the defendant had knowledge of the dog’s viciousness and kept the dog in a negligent
manner, the jury may award … punitive damages under the common-law action.” Id.
The Court clearly stated that to recover under common law, the jury must find the
defendant had knowledge of the dog’s viciousness and the defendant kept the dog in a
negligent manner.
{¶28} Further, in the Beckett case, the Supreme Court cited the Hayes and
McIntosh cases. In Hayes, the Ohio Supreme Court held that when it is shown that the
animal was kept by the defendant after knowledge of its dangerous character has been
acquired and an injury followed, there is prima facie evidence of negligence. 62 Ohio St.
161,
56 N.E. 879 (1900). Further, the “gist of such an action … is the negligent failure
to properly restrain the animal and to keep him so safely that he may not injure anyone
who is lawfully at the place.”
Id. In McIntosh, the court held that the plaintiff has the
“burden of proving that defendant had negligently kept the dog after receiving knowledge
Stark County, Case No. 2023CA00117 10
of its vicious nature,” and “the owner or harborer who knows of its vicious nature and
negligently keeps it, may have assessed against him punitive damages.”
81 Ohio App.
351,
77 N.E.2d 260 (1st Dist. Hamilton 1947). The Court stated the liability of the
defendant in the case depended upon proof of negligence in the defendant keeping the
dog after acquiring knowledge of its vicious character.
Id. These cases demonstrate the
focus is on whether the defendant, in this case appellee, negligently kept the dog after
acquiring knowledge of its dangerous nature.
{¶29} Caselaw from this Court, and other appellate districts, confirm that under
the common law theory, one of the four elements the plaintiff must prove is that the
defendant was negligent in keeping the dog. Webb v. Prout, 5th Dist. Richland No. 2005
CA 0124, 2006-Ohio-4792; Flint v. Holbrook,
80 Ohio App.3d 21,
608 N.E.2d 809 (2nd
Dist. Montgomery 1992) (plaintiff must show “defendant was negligent in keeping the
dog”); Brown v. Terrell, 9th Dist. Summit No. 28845,
2018-Ohio-2503 (fourth element is
“defendant’s negligence in keeping the dog”); Redeye v. Belohlavek, 8th Dist. Cuyahoga
No. 87874,
2007-Ohio-85 (plaintiff suing for damages inflicted by a dog under a
negligence theory must show … the defendant was negligent in keeping the dog);
Schneider v. Kumpf, 2nd Dist. Montgomery No. 26955,
2016-Ohio-5161 (must show
defendant was negligent in keeping the dog); Ward v. Humble, 2nd Dist. Montgomery No.
29417,
2022-Ohio-3258 (under common law, a plaintiff suing for injuries inflicted by a dog
must show … defendant was negligent in keeping the dog); Dillon v. Ohio Department
of Rehabilitation and Correction, 10th Dist. Franklin No. 22AP-392,
2023-Ohio-942
(summary judgment affirmed because no evidence that dog was kept in a negligent
manner by defendant).
Stark County, Case No. 2023CA00117 11
{¶30} Appellant suggests that this Court, in Darfus v. Clark, broadened the
common law liability to focus not on the negligence of the defendant, but on any “keeper.”
5th Dist. Fairfield No. 12-CA-9, 2013-Ohio-563. We disagree, and find Darfus
distinguishable from the instant case. First, in Darfus, liability was not at issue. Second,
the facts are not similar to the facts in this case, as the defendant in Darfus lived with the
dog and told the dog to “get him” when the plaintiff came to her property to inquire about
listing the property for sale. Finally, in Darfus, this Court cited both Hayes and McIntosh,
which demonstrate the focus is on whether the defendant, not a third party, negligently
kept the dog.
{¶31} Appellant’s argument regarding the fourth element of a common law
negligence claim in a dog bite case is more akin to R.C. 955.28, where ownership of a
dog that attacks another person resulting in injury may give rise to strict liability. However,
in a common law claim, the plaintiff must demonstrate something more, i.e., that the
owner knew of the dog’s viciousness and that the owner kept the dog in a negligent
manner.
{¶32} Under common law, the “gist of the action for injury by a dog known by its
owner to be vicious is generally said to be not negligent in the manner of keeping the dog,
but for keeping it at all.” Warner v. Wolfe, 176 Ohio St. 389,
199 N.E.2d 860 (1964). A
defendant “keeps” a dog by having the care, custody, or physical control over it. Thus,
the question is whether appellant put forth any evidence that appellee was negligent in
keeping Bella.
{¶33} Appellant was required to produce summary judgment evidence
demonstrating appellee kept Bella in a negligent manner after having knowledge of her
Stark County, Case No. 2023CA00117 12
viciousness. Appellant himself was a “keeper” of Bella at the time of the injury, as he was
physically in control of the dog at the time of injury. Appellant was also a “harborer”
because he was in possession and control of the premises where the dog lived and
acquiesced in the dog being kept there.
{¶34} There is no evidence appellee kept the dog at all, not even in a temporary
capacity, for more than two years prior to the incident. Appellee testified that from the
summer of 2019 until after the incident, Bella was not in his home, and he had no physical
control over the dog during that time. Appellee further stated he did not care for or have
custody of Bella during those two years. Appellant testified he never saw appellee exert
any control over Bella and appellant stated no one else was taking care of the dog except
Regina. The testimony is undisputed that appellee had not exerted any temporary
physical care or control of Bella for over two years prior to the incident. Because appellant
set forth no summary judgment evidence demonstrating appellee kept the dog in a
negligent manner, the trial court did not commit error in granting appellee’s motion for
summary judgment and denying appellant’s motion for partial summary judgment.
{¶35} Based on the foregoing, appellant’s assignment of error is overruled.
Stark County, Case No. 2023CA00117 13
{¶36} The August 25, 2023 judgment entry of the Stark County Court of Common
Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Baldwin, J., concur.
