This guide discusses only defenses to the statutory strict liability claim under R.C. 955.28(B). It does not discuss negligence claims.
Overview of defenses
The only defenses to the statutory strict liability claim are those in the statute: (1) committing or attempting to commit criminal trespass or another criminal offense other than a minor misdemeanor on the property of the owner, keeper, or harborer; (2) committing or attempting to commit a criminal offense other than a minor misdemeanor against any person; or (3) teasing, tormenting, or abusing the dog on the owner's, keeper's, or harborer's property. R.C. 955.28(B). For definitions of owner, keeper, and harborer, see my guide on this.
What is committing or attempting to commit a crime on the property of the owner, keeper, or harborer?
It is not illegal to have a guard dog to protect the property of the owner. If a dog attacks a burglar on the property, the owner might not be liable.
What is committing or attempting to commit a crime against any person?
It is not illegal to have a dog for protection. If a dog attacks someone who is trying to harm the owner (or another person), the dog owner might not be liable.
What is teasing, tormenting, or abusing the dog on the owner's, keeper's, or harborer's property?
A dog who is being teased, tormented, or abused may attack. If this happens, the dog owner might not be liable.
What about assumption of risk if there is a beware of dog sign?
Assumption of the risk is a defense to a negligence claim but not to an action under the dog bite statute. Pulley v. Malek, 25 Ohio St.3d 95, 495 N.E.2d 402, syllabus (1986).
What if the dog bites a keeper or harborer? Does that person have a claim against the owner?
Probably not under the statute. There are cases that say a person who is an owner, keeper, or harborer of a dog cannot make a claim under R.C. 955.28(B) against another owner, keeper, or harborer of the same dog. So a kennel worker bitten by a dog has no claim against the dog's owner under R.C. 955.28(B). Khamis v. Everson, 88 Ohio App.3d 220, 227, 623 N.E.2d 683 (2nd Dist. 1993).
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