Ohio's New Dog Law: What the End of Breed-Specific 'Vicious Dog' Rules Means for Bite Victims

Published May 23, 2012 · New Laws

For a quarter century, Ohio law said that a pit bull was a "vicious dog" the day it was born. As of yesterday, that is no longer true. House Bill 14, signed by Governor Kasich on February 21, 2012, took effect on May 22, and with it Ohio stopped classifying dogs by breed and started classifying them by what they have actually done. The change has been debated for years by dog owners, animal advocates, and dog wardens. My interest is narrower: what does it mean for a person who has been bitten?

What H.B. 14 changed

The bill, sponsored by Representative Barbara Sears, amended R.C. 955.11 and several related sections of the dog laws. The headline change is the removal of the sentence that defined any dog "commonly known as a pit bull dog" as vicious. According to published reports, Ohio was the only state in the country with a breed-based definition in its statewide vicious-dog law.

In place of the breed label, the law now sorts dogs into three categories based on conduct, each defined in R.C. 955.11 and each requiring that the dog acted "without provocation":

• Nuisance dog. A dog that, while off its owner's property, has chased or approached a person in a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger a person.
• Dangerous dog. A dog that has caused injury to a person short of killing or serious injury, has killed another dog, or has been the subject of a third or later violation of the confinement law.
• Vicious dog. A dog that has killed or caused serious injury to a person.

"Without provocation" means the dog was not teased, tormented, or abused, and was not defending a person who was not engaged in criminal activity.

The law also creates a formal designation process. A dog warden or other enforcement officer who has reasonable cause to believe a dog fits one of the categories must notify the owner of the designation. The owner then has ten days to request a hearing in the municipal or county court. At that hearing, the warden carries the burden of proving the designation by clear and convincing evidence, a standard higher than the ordinary civil standard. Owners of dangerous and vicious dogs must register them and comply with confinement and other requirements, and the penalties for violating those rules were revised.

What did not change: strict liability for every bite

Here is the most important point for anyone who has been bitten. H.B. 14 did not touch R.C. 955.28(B), Ohio's dog-bite liability statute. That section still provides that the owner, keeper, or harborer of a dog "is liable in damages for any injury, death, or loss to person or property that is caused by the dog." It does not matter what breed the dog is. It does not matter whether the dog has ever been designated as nuisance, dangerous, or vicious. It does not matter whether the owner knew the dog was aggressive.

I explained how this works in my post on Ohio's dog-bite statute. The only defenses are the ones written into the statute: that the victim was trespassing or committing a crime on the owner's property, or was teasing, tormenting, or abusing the dog. A bite victim does not have to prove the dog was "vicious" under the new law to recover under R.C. 955.28.

Where the new designations will matter

The conduct-based categories do affect bite cases in two ways.

First, a designation is evidence of the owner's knowledge. Ohio allows a bite victim to pursue a common-law negligence claim alongside the statutory claim. The Supreme Court confirmed that in Beckett v. Warren, which I wrote about in my post on pursuing strict liability and negligence at the same time. The common-law claim requires proof that the owner knew the dog was dangerous. Under the old law, breed alone supplied that knowledge for pit bulls. Under the new law, a prior designation as a nuisance or dangerous dog, a prior hearing, or a prior bite report does the same job, and it does so for any breed. Those records are public, and in a serious case we obtain them.

Second, knowledge opens the door to punitive damages. Punitive damages, which punish rather than compensate, require proof that the defendant acted with malice, meaning a conscious disregard for the safety of others. An owner who has been formally notified that his dog is dangerous, who has sat through a hearing, and who then lets the dog run loose again has a hard time arguing he did not know the risk. The new designation process creates exactly the paper trail that supports that argument.

The practical problem: fewer insured owners

There is a less welcome side to the change. Under the old law, the owner of a pit bull was the owner of a "vicious dog" by definition and had to comply with the obligations that came with that label, including the liability insurance requirement the law places on vicious-dog owners. Those policies were often the only source of money for a mauled child. Now the insurance requirement follows the designation, not the breed, which means an owner whose dog has never been formally designated may have no coverage at all when it bites for the first time.

That makes finding other coverage more important than ever. A homeowner's or renter's policy often covers dog-bite liability. A landlord who allowed a dangerous dog on the property may be a "harborer" with responsibility of his own. Identifying every responsible party and every policy early is the difference between a judgment on paper and a recovery that pays for a child's surgery and scars.

What this means for you

• If you were bitten, the breed no longer matters, and it never mattered for strict liability. R.C. 955.28 applies to every dog.
• Report the bite to the dog warden and the health department. Under the new law, that report can start a designation process that protects the next victim and creates evidence for your case.
• Ask about the dog's history. Prior complaints, prior designations, and prior hearings are now part of the public record and can support negligence and punitive-damage claims.
• Find the insurance. Do not assume the owner has coverage. Homeowner's, renter's, and landlord policies all need to be investigated.
• Act within two years. As I explained in January in a post about a Montgomery County case involving PTSD after a dog attack, Ohio's two-year deadline applies to bite claims, and psychological injury will not extend it.

Dog-bite injuries, particularly to children, are among the most serious cases we handle in our personal injury practice. The scars are physical and emotional, and the law provides real remedies for them.