Ohio Supreme Court: Dog-Bite Victims Can Pursue Strict Liability and Negligence at the Same Time

Published January 14, 2010 · Ohio Supreme Court

A child is playing in a neighbor's yard when the family dog lunges and bites her face. The emergency room visit is the easy part. Afterward come the stitches, the scarring, the nightmares, and the question every parent eventually asks: do we have to pick one legal theory and hope it is the right one?

As of last week, the answer in Ohio is no. On January 6, 2010, the Supreme Court of Ohio decided Beckett v. Warren, 124 Ohio St.3d 256, 2010-Ohio-4, and held that a dog-bite victim may bring both a strict-liability claim under Ohio's dog statute and a common-law negligence claim in the same lawsuit. That ruling matters more than it may sound, because the negligence claim is the only route to punitive damages.

Two ways to hold a dog owner responsible in Ohio

Ohio has long given bite victims two separate paths to recovery.

The statute. R.C. 955.28 makes the owner, keeper, or harborer of a dog liable for any injury, death, or loss the dog causes to a person or property. There are narrow exceptions, such as when the injured person was trespassing, committing a crime on the property, or teasing or tormenting the dog. Otherwise liability is "strict," meaning you do not have to prove the owner did anything careless. As the Supreme Court summarized it, the victim proves only that the defendant owned, kept, or harbored the dog, that the dog's actions caused the injury, and the amount of the damages.

The common law. The older, judge-made claim requires more. The victim has to show that the dog was vicious, that the owner knew it, and that the owner kept the dog carelessly after learning of its viciousness. It is harder to prove. But because it is an ordinary tort claim, a jury can award punitive damages, which are extra damages meant to punish an owner who ignored a known danger.

The statute gives you the easier case. The common-law claim gives you the bigger potential recovery. Until last week, some Ohio trial courts forced victims to choose.

What happened in Beckett v. Warren

Yoshanta Beckett sued on behalf of her minor child, who had been bitten on the head by a dog owned by Richard Warren and Mary Wood. Her complaint included both the statutory claim and common-law negligence claims. The trial court in Summit County ordered her to elect one theory before trial. She chose the statute, and the jury returned a verdict of only $5,000.

The Ninth District Court of Appeals reversed and ordered a new trial on both claims. Because another appellate district had reached the opposite conclusion years earlier, the case went to the Supreme Court as a certified conflict.

The Court affirmed the Ninth District. Its one-sentence syllabus settles the question: "A plaintiff may, in the same case, pursue a claim for a dog bite injury under both R.C. 955.28 and common law negligence."

Justice Lundberg Stratton's majority opinion explained that nothing in the statute says it is the only remedy, and nothing requires a victim to choose. The Court pointed out that the two claims are not inconsistent with each other. In its words, "The common law cause of action simply provides a potential additional remedy" when the victim can prove the owner knew the dog was dangerous. Compensatory damages, the money for medical bills, pain, and scarring, are the same under either theory, so there is no double recovery.

The decision was not unanimous. Two justices dissented, warning that juries could become confused when evidence of a dog's history is admissible on one claim but irrelevant to the other. The majority answered that trial judges instruct juries on exactly this kind of distinction all the time, and that a jury is presumed to follow those instructions.

Why the negligence claim is worth fighting for

Most dog-bite cases are paid by the owner's homeowner's or renter's insurance policy. Insurance generally does not cover punitive damages, so the practical value of the common-law claim is sometimes overstated. But there are real reasons it matters.

First, evidence that the owner knew the dog was dangerous changes the character of the case. A jury that hears about a prior bite, a complaint to animal control, or a warning from a neighbor sees the owner differently, and that affects how it values the child's pain, fear, and disfigurement.

Second, when a dog has a known bite history, the owner's own assets may be reachable for punitive damages on top of what the insurer pays.

Third, the threat of a punitive award gives the insurance company a reason to settle for full value rather than treat the claim as a routine payout.

Before Beckett, a victim who wanted those advantages risked giving up the easy proof of strict liability. Now you keep both.

How a serious dog-bite case is built

Dog attacks on children are among the most emotionally difficult cases we handle, and they are often undervalued by adjusters who focus on the initial emergency-room bill. A well-prepared claim documents:

• the full medical picture, including plastic-surgery consultations and the likelihood of future scar revision as the child grows;
• psychological harm, which in young children can include lasting fear of animals, sleep disturbance, and anxiety;
• the dog's history, gathered from animal-control records, neighbors, prior victims, veterinarians, and the owner's own statements;
• every potentially responsible party, since the statute reaches not only owners but also "keepers" and "harborers," which can include a person who was watching the dog or a household member who allowed it on the property.

Our office handles cases throughout Montgomery, Greene, Warren, and Miami Counties and across Ohio, and dog-bite injuries have been part of this practice for many years. My background as a Dayton police officer also helps; I spent years responding to animal complaints and know what a thorough investigation looks like. You can read more about my background here.

What this means for you

If you or your child has been bitten, you no longer have to choose between the strict-liability statute and a negligence claim. Your lawyer can plead both, prove the statutory claim with straightforward evidence of ownership and injury, and pursue punitive damages if the investigation shows the owner knew the dog was dangerous.

Two cautions. The statute has exceptions for trespassers and for people who were teasing or abusing the dog, and insurers lean on those exceptions hard, so what you say to the adjuster matters. And evidence of a dog's prior behavior disappears quickly; neighbors move, animal-control files get purged, and owners rehome the dog. The sooner someone starts asking questions, the stronger the case.