When the Dog Bites. Hotel Liability May Depend Upon Owner’s Length of Stay

Posted on December 2nd, 2015 by sutteroconnell

In Ohio, lawsuits involving dog bites are governed by O.R.C. § 955.28, often called “the Dog Bite Statute”.  It is a strict liability system, which means that the fault of the defendant is irrelevant.   Even if the dog had never acted viciously in the past, and there was nothing the defendant could have done to prevent the attack, the defendant may still be liable.

To prevail, the plaintiff must prove two elements:

  1. The defendant was the dog’s owner, keeper, or harborer.
  2. The dog’s conduct proximately caused the plaintiff’s injuries.

Most dog bite cases turn on the first element:  was the defendant the dog’s owner, keeper or harborer?

A dog’s “owner” is usually the easiest to identify.  The “owner” is the person(s) primarily responsible for taking care of the dog and/or whose name appears on the dog’s registration.

A “keeper” is akin to an owner, but on a temporary basis.  A dog’s “keeper” is the person who exercised “physical care and charge” over the dog in the moments before the incident.  Kircher v. Baugess, 2013-Ohio-4669, ¶10.  Examples of keepers include dog sitters, veterinarians, dog groomers, and kennel workers.

A “harborer” – on the other hand – is not about whether a person controls the dog.  A “harborer” is a person who has possession and control over the place where the dog lives.  If the premises owner is both (1) aware of the dog’s presence and (2) “silently acquiesces” to the dog’s presence (i.e. does not object),  then the premises owner is a “harborer” under the Dog Bite Statute.

Whether a hotel is a dog’s harborer can be a complex question.  Hotels, by their very nature, are designed for temporary residency.  So in order to determine whether a dog is “living” at the hotel, the dog owner’s length of stay must be “more than temporary.”  Brown v. FMW RRI NC, LLC, 10th Dist. No. 14AP-953, 2015-Ohio-4192, ¶15.  There is no bright line rule.  No exact number of days renders a dog’s stay “more than temporary.”  Id. at ¶ 17.

In Brown v. FMW RRI NC, LLC, Ohio’s 10th Appellate District recently tackled the “temporary” versus “more than temporary” question.  The plaintiff was a guest at a Red Roof Inn, a pet-friendly hotel.   While walking her terrier, Yogi, in a parking lot, a pit bull viciously attacked Yogi.  The plaintiff suffered a severe hand injury while attempting to intervene.  The pit bull’s owner was also a guest at the Red Roof Inn.

The plaintiff sued Red Roof Inn arguing the it was the pit bull’s “harborer”.  It was undisputed that the pit bull’s owner was homeless.  He and his dog had stayed at the hotel for 54 days during a 2 month span.  Ultimately, the Court decided that the hotel could be considered the dog’s “harborer.”  A jury could determine that the dog’s stay was “more than temporary” and that the pit bull was “living” at the hotel.  Id. at ¶13.  And because the injury happened in a “common area,” (i.e. a parking lot) and not an individual hotel room, the hotel could be liable.  Id. at ¶19.

Brown v. FMW RRI NC, LLC is an example of the broad reach of the Dog Bite Statute.  If a resident’s or guest’s dog is in a “common area” – such as a hotel lobby, elevator, parking lot, or green space – the premises owner can be held liable for that dog’s conduct.  That is why it is important for all pet-friendly establishments to require that dog owners leash their dogs.  Businesses should enact leashing policies, weight/size restrictions, and ensure that such policies are regularly enforced.

For more information about this article or any other litigation issue, please feel to contact any of our Premises Liability and Retail, Restaurant, and Hospitality attorneys.