I love Dogs… But… they can be a REAL nuisance to cyclists & pedestrians… To the cyclist they present a couple of problems… first, you could get bit by a dog. However, I’ve done over 50 “dog/bike” cases and in only a few was the cyclist actually bitten. Rather, dogs like to chase cyclists… sometimes they simply run into them …. or in front of them… I had one case where some German Shepherds came onto the road and split up a group of riders, cornering the last one. She tried to stop but fell over and suffered an ulnar nerve injury treated by doctors and her hand… the dogs ran back to the porch. I’ve had cases involving bicycle crashes caused by huge dogs and cases with puppies – cases with vicious dogs that attack and cases with big old friendly dogs that walk up and lick your hand after they caused you to crash!
In each case the cyclist got hurt – sometimes very badly. In each of those situations the dog owner is liable to the cyclist for typical “personal injury” damages. This includes paying all medical bills, wage loss and other out of pockets as well as covering any future treatment, permanent injuries and “pain and suffering.” Since many jurors find dog attacks very scary, the risk to the dog owner is that a jury will award a bigger verdict. In each case reflected above we successfully recovered money from the dog owner -typically through the homeowner’s policy.
While Ohio law may be lacking in some areas, we have one of the better “dog laws” around when it comes to dogs interacting with cyclists & pedestrians. It is a strict liability statute – one older Ohio Supreme Court case says “absolute liability.” That’s pretty tough. Once you prove the dog left the property and caused a crash or fall the only issue, really, is damages.
Ohio revamped the dog laws a few years ago by defining some categories of dogs based on the problems they caused. Professor Marianna Brown Bettman discusses a very recent Ohio Supreme Court case that talks about these designations.
I’ve known Marianna Brown Bettman in several capacities… first as a highly accomplished trial lawyer who helped out a newbie like me many years ago…then as Judge Bettman as she became the first woman elected to the First Appellate District of Ohio and finally as Professor Bettman as she taught at the University of Cincinnati Law School from 1999 through her retirement in 2016. Her blog post- Legally Speaking Ohio – is at the top of my list of favorites.
This week she discusses the most recent Ohio Supreme Court decision on Dangerous Dogs. You can read it here:
Or you can see what I’ve pasted in below… ENJOY & Stay Safe…
Oh… I never miss a chance to post my Dog Poem
They say that Dogs are Man’s Best Friend
I’ll grant you all that much
It’s just hard for me to call him “Pal”
While he gnaws my calf for Lunch…
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Merit Decision: Dog Need Not Be Designated As Dangerous Before Owner Can Be Prosecuted For Failure to Confine A Dangerous Dog. State v. Jones
On December 17, 2019, the Supreme Court of Ohio handed down a merit decision in State v. Jones, Slip Opinion No. 2019-Ohio-5159. In a decision written by Justice Stewart, the Court held that a dog need not be previously designated as “dangerous” before the owner can be prosecuted under R.C. 955.22(D) for failing to confine a dangerous dog, but that the state failed to present sufficient evidence that the dog in this case was dangerous. Chief Justice O’Connor, Justices DeWine and Donnelly, and Judge Waite, subbing for Justice Fischer, concurred. Justice Kennedy concurred in judgment only, joined by Justice French. The case was argued May 8. 2019.
Joseph Jones was walking his dog in downtown Cincinnati when Jones let his dog off the leash to protect him from an approaching stray dog. The two dogs interacted without incident. As Jones was walking back to his apartment, the two dogs came upon Alyssa Rushing, who was out walking her dog. Jones claims he re-leashed his dog and that the stray attacked Rushing’s dog. Rushing claims Jones’ dog bit her on the wrist and hand, and pulled her to the ground while the stray attacked her dog. Both Rushing and her dog were bitten.
Jones was charged with failure to confine a dangerous dog, in violation of R.C. 955.22(D), a fourth-degree misdemeanor. Jones was tried and convicted, and sentenced to 30 days in jail, suspended on the condition that he complete six months of non-reporting probation, $100 fine and court costs. Jones appealed.
The First District Court of Appeals reversed Jones’ conviction, finding that in order to find a violation of R.C. 955.22(D), there first had to be a previous dangerous-dog designation, which was an element of the offense which could not be satisfied by presenting evidence at trial that the dog was dangerous.
The high court accepted the case on conflict certification.
Must a dog have been previously designated as a “dangerous dog” under Chapter 955 of the Revised Code before its owner may be prosecuted for a violation of R.C. 955.22?
Certified Conflict Case
State v. Crocker, 2013-Ohio-3100 (5th Dist.) (A dog need not have been previously designated as dangerous for its owner to be convicted of failure to restrain or confine a dangerous dog. Other evidence is permitted to prove that the dog was dangerous.)
How Does the Court Answer the Certified Conflict Question?
In the negative.
R.C. 955.11(A)(1)(a) (Dangerous Dog Defined) (A dangerous dog is one that has, without provocation, caused injury, other than killing or serious injury, to any person, killed another dog, or been the subject of a third violation under R.C. 955.22(C).)
R.C. 955.22 (Confining, restraining, debarking dogs; dangerous dog registration)
(B) No owner of any female dog shall permit the dog to go beyond the owner’s premises while it is in heat without a leash;
(C) Except while hunting, no owner of any dog shall fail to keep a dog physically confined, under appropriate supervision, or keep the dog under reasonable control of some person.
(D) Except when hunting, no owner of a dangerous dog shall fail to secure the dog in some enclosure, on a chain-link leash not more than six feet long, or keep the dog adequately restrained to prevent injury to a person.)
R.C. 955.222 (Hearings for dog designation)
(A) the municipal court or county court that has territorial jurisdiction over the residence of the owner of a dog shall conduct any hearing concerning the designation of the dog as a nuisance dog, dangerous dog, or vicious dog.
(B)(2) A person authorized to designate a dog as dangerous shall notify the owner of the designation and the owner shall have an opportunity to appeal that designation by hearing.
(C) At the hearing, the person attempting to designate a dog as dangerous bears the burden of proving the designation by clear and convincing evidence.
City of Akron v. Rowland, 67 Ohio St.3d 374 (1993) (“Due process requires that the terms of a criminal statute be reasonably clear and definite” to ensure notice and fair warning.)
State v. Cowan, 2004-Ohio-4777 (Due process is violated if a state agent makes a unilateral legal determination, accompanied by relatively burdensome obligations for a dog owner, without any procedural oversight. The owner must have a right to challenge evidence that supports a dog’s classification.)
R.C. 955.22’s dangerous dog laws do not apply to a person unless that person’s dog has previously been declared to be a dangerous dog by the state as set forth in R.C. 955.222, or by a judge at an earlier proceeding for failure to confine that dog.
The dangerous dog element of failure to control or confine a dangerous dog does not require that the dog be previously designated as dangerous pursuant to R.C. 955.222 or any other judicial proceeding. That element can be proven at trial with sufficient evidence that the dog’s conduct meets the statutory definition set forth in R.C. 955.11(A)(1)(a).
Executive Summary of Majority Holding
The Court holds that a prior dangerous dog designation is not required before a person may be prosecuted for failing to control or confine a dangerous dog. Where the state has probable cause to believe a dog is dangerous, the state may prosecute and prove the dog’s dangerousness at trial along with the other elements of the offense. BUT in this case the state failed to present sufficient evidence that Jones’ dog was dangerous.
Chapter 955: Dogs
This section of the Ohio Revised Code has a lot of stuff in it about dogs, including defining dangerous dog and outlining the penalties for noncompliance with the provisions in this chapter. Pertinent here is the definition of dangerous dog in R.C. 955.11(A)(1)(a) because the same definition is used in R.C. 955.22.
In 2004, the Court decided State v. Cowan, in which the Court held that the version of R.C. 955.22 then in effect violated procedural due process because it allowed a dog warden to label dogs as vicious or dangerous without providing any meaningful opportunity for the dog owner to challenge the designation, even at trial. The warden’s designation was essentially irrebuttable and conclusive. After this decision the legislature enacted R.C. 955.222, which established a procedure for designating a dog as dangerous, and the right to a hearing to challenge that designation.
Addressing Due Process Concerns
The majority disagrees with the First District that R.C. 955.22 requires a prior dangerous-dog designation for Jones to have been put on notice of the statutory requirements for confining his dog and the penalties for failure to do so. Key to this determination is the use of the past tense “has done” in R.C. 9511(A)(1)(a) when referring to the dog’s conduct, meaning only the dog’s past conduct can be used to define it as a dangerous dog.
“Because the dangerous-dog designation turns on the dog’s past behavior, the statute provides fair warning to a dog owner that he or she may be subject to the dangerous-dog provisions of R.C. 955.22,” wrote Stewart.
The Court concludes that neither its decision in Cowan nor the enactment of R.C. 955.222 requires the state to designate a dog as dangerous before initiating a prosecution under the dangerous dog laws. Had the legislature intended for a prior designation to be a prerequisite to prosecution, it could have said so, but did not.
Sufficiency of the Evidence in this Case
While a prior dangerous dog designation is not required in order to proceed with a prosecution under R.C. 955.22, the state still must prove that the dog, without provocation, did any of the following: (1) caused a non-serious injury to another person, (2) killed another dog, or (3) been the subject of a third or subsequent violation of R.C. 955.22(C). But the majority, briefly reviewing the evidence presented, consisting mostly of Facebook posts about Jones’ dog’s temperament, concludes that the state failed to do so in this case.
Jones’ conviction is reversed, but not for the reasons in the First District’s opinion.
Justice Kennedy’s Position
Justice Kennedy would answer the certified conflict question in the affirmative because she would find that a “dangerous dog” designation pursuant to R.C. 955.222 is necessary before the dog’s owner can be prosecuted under R.C. 955.22 for failing to control or confine the dog. But because she agrees with the majority, albeit for different reasons, that Jones’ conviction should be reversed, she concurs in judgment only.
Main Disagreements with Majority
Kennedy criticizes the majority for failing to give effect to the plain and unambiguous words in the relevant statutes and to give effect to all parts of the statutory scheme in Chapter 955.
Pay Attention to that Present-Perfect Tense
Jones was charged with failing to confine a dangerous dog in violation of R.C. 955.22(D). That is part of R.C. Chapter 955 which covers a whole lot of stuff about dogs, all of which must be considered here. Key to Kennedy is the part of R.C. 955.11(A)(1)(a) that defines a dangerous dog as one that has done one of the listed things. Take heed. “Has done” says Kennedy, is in the “present-perfect tense and indicates that the behavior by the dog must have previously occurred at some unspecified time.”
Kennedy thinks that the majority’s position that the dangerous dog determination can take place at the same time as the prosecution for failure to confine a dangerous dog, as long as the government can prove it, fails to take into account the civil legal process enacted by the legislature in R.C. 955.222.
And Watch Those Definitions
Back to Webster’s Third New International Dictionary
Justice Kennedy definitely has a fondness for using Webster’s to define undefined statutory terms. This time it is “designate,” which means to “distinguish as to class: denominate, identify, label” or (2) “to declare to be: characterize.” Kennedy criticizes the majority for failing to give effect to the word “designate,” which here means being placed in the category of dangerous dogs.
“Therefore, by its plain and unambiguous terms, R.C. 955.222 provides that a dog cannot be a dangerous dog until the process has been completed, either by the owner’s failure to timely seek a hearing or by final judicial determination. It is only after a dog is designated a ‘dangerous dog’ that the owner of the dog is put on notice that he or she is subject to the more stringent ownership and harboring requirements of R.C. 955.22(D) and that a violation of those requirements may subject the owner to criminal prosecution,” wrote Kennedy. She also gives a number of examples of where the majority holding fails to take into consideration or give effect to various provisions of R.C. 955.222.
Justice French concurred in Kennedy’s opinion.
Here’s what I wrote after argument, which turned out to be spot on:
“I think the state may get its win with a negative answer to the certified question, but with a finding either that the evidence wasn’t sufficient to convict in this case, or no finding on that issue. Mr. Liu (the prosecutor) as much as conceded he would settle for that, because rather than a win on the underlying misdemeanor charge, the state seeks the precedent that a prior designation of dangerousness is not required for a prosecution for a violation of R.C. 955.22. Dangerousness can be challenged at that hearing, which should allay due process concerns.”