Dog Attack in a Shared Yard or Playground? Dayton Court Holds the Landlord Strictly Liable

Published December 30, 2024 · Ohio Appeals Courts

A child goes out to the playground in the neighborhood where his family rents. A neighbor's dog is there, leashed to a swing. The child pets it, and the dog bites him on the head. Who pays? The dog's owner, certainly. But on December 20, 2024, the Second District Court of Appeals in Dayton held that the company that owns the community can be strictly liable too, because it controlled the playground and allowed tenants' dogs there.

The decision is Hipshire v. Oakwood Village, 2024-Ohio-5948. It is ten days old, it was decided 2-1 over a thoughtful dissent, and further review is possible. But for now it is the law in the Second District, which covers Montgomery, Greene, Miami, Clark, Darke and Champaign Counties, and it is one of the most important dog-bite rulings for renters in years.

What happened

According to the court's opinion, both families lived in Oakwood Village, a manufactured-home community. The company that owned the community allowed residents to have dogs, except for a list of restricted breeds, and allowed them to bring their dogs into the community's common areas, including a playground. The dog involved was not a restricted breed.

On October 6, 2020, a boy identified in the opinion as L.H. went to the playground, where a neighbor's son had the family dog leashed to a swing. L.H. approached and patted the dog on its back and head. The dog bit him on the head. He was admitted to a local hospital and needed more than 50 stitches.

His mother sued the dog's owner and the community's owner under Ohio's dog-bite statute. The dog's owner never answered, and a default judgment was entered against her. The trial court granted summary judgment to the community's owner. The family appealed.

Ohio's strict-liability dog statute

R.C. 955.28(B) makes the "owner, keeper, or harborer of a dog" liable in damages for injury caused by the dog. This is strict liability: the injured person does not have to prove the dog had bitten before or that anyone was careless. The statute's exceptions are narrow, covering people who were trespassing, committing a crime, or teasing, tormenting or abusing the dog on the owner's, keeper's or harborer's property.

The key question in landlord cases is the word "harborer." Ohio courts define a harborer as someone who has possession and control of the premises where the dog lives and acquiesces, silently or otherwise, to the dog's presence. A harborer does not have to own or control the dog, only the property.

What the court decided

Writing for the majority, Judge Tucker held that a landlord that possesses and controls a common area and permits tenants' dogs to be there is a harborer while the dog is in that common area. Common areas such as sidewalks, hallways, parking lots and playgrounds remain under the landlord's control, and Ohio law requires landlords to keep them safe. It was undisputed that the community's owner owned and controlled the playground and allowed tenants' dogs in it. That made it strictly liable for L.H.'s injuries.

The court rejected two defenses that landlords often raise:

• The leash rule does not matter. The community required dogs to be leashed in common areas, and this dog was. The court held the leash requirement was not relevant to strict liability. An owner is liable when a leashed dog bites, and a harborer is treated the same way.
• Knowledge of viciousness does not matter. Whether the landlord knew the dog was aggressive may matter in a negligence claim, but not under the strict-liability statute. On that point, even the dissent agreed.

The court reversed and ordered the trial court to grant partial summary judgment to the family on liability. The majority acknowledged that its conclusion "puts landlords in a difficult position," but said the definition of harborer and the statute compelled it.

The dissent

Judge Welbaum dissented. Reviewing the history of the word "harborer," he concluded that a landlord's adoption of pet rules, such as leash requirements and breed restrictions, weighs against finding that it acquiesced to a dog's presence, and he warned that the majority's approach could make it hard for dog owners to find places to rent. He would have affirmed the judgment for the landlord.

How this fits with the 2022 Kettering case

In 2022, the same court decided Ward v. Humble, 2022-Ohio-3258, a Kettering case in which a tenant's pit bull broke through a neighbor's privacy fence and bit the neighbors. The court held that the landlord was not a harborer, because a lease of a single-family house on a normal city lot transfers possession and control of the whole property to the tenant, and the attack did not happen in any common area the landlord controlled. I wrote about that decision in our October 2022 post on dog bites and landlord liability.

Put the two cases side by side and the dividing line is clear: who controlled the place where the attack happened.

• A single-family rental house leased to the dog owner: the landlord usually is not a harborer.
• A common area that the landlord keeps, such as an apartment complex courtyard, hallway, parking lot, dog walk, or a manufactured-home community's playground, where tenants' dogs are allowed: the landlord can be a harborer and strictly liable.

Why the landlord matters

Many dog owners who rent have little insurance and few assets. The owner of an apartment complex or manufactured-home community is far more likely to carry commercial liability coverage. When a child is seriously hurt, identifying every party responsible under the statute can decide whether the family is fully compensated. In the meantime, your own health insurance should be used to keep medical bills paid while the claim proceeds; our guide chapter on using your own insurance explains why.

What this means for you

If you or your child was bitten in a shared area of an apartment complex, mobile-home park or similar community, the property owner may be responsible along with the dog's owner. Document the scene right away: where the attack happened, the signs and pet rules posted, and photographs of the injuries as they heal. Get medical care the same day, and keep every record. Our guide chapter on the first 72 hours after an injury walks through these steps, and our premises liability and personal injury pages explain how we approach injuries on someone else's property.