Ohio’s dog-bite statute, R.C. 955.28(B), holds the owner or keeper of a dog strictly liable for any injury, death or loss to person or property caused by the dog, “unless the injury, death, or loss was caused to the person ... of an individual who, at the time, was committing or attempting to commit criminal trespass...” (emphasis added). Recently, in the case of Mota v. Gruszynski, 2012-Ohio-275, the Court of Appeals for Ohio’s Eighth Appellate District (Cuyahoga County) held that a licensed surety bail agent, or “bounty hunter,” who was attacked and bitten by a dog while attempting to enforce an arrest warrant on the dog’s owner, could not recover against the owners of the private residence where the dog was being harbored on the grounds that the bounty hunter was a trespasser under dog-bite statute.
Thomas Mota, a licensed bounty hunter, was attacked by a dog while pursuing Jerome J. Gruszczynski inside the residence of Jerome’s parents, the Defendants. At the time of the attack, Mota was attempting to arrest Jerome who had jumped bail. Although Jerome did not live at his parents’ home, they had given him permission to keep his dog, “Buckshot,” on the back porch. When Mota entered their back porch in pursuit of Jerome, he was immediately set upon by Buckshot who repeatedly bit Mota before Mota was able to escape over the fence that enclosed the Defendants’ property.
Mota sued the Defendants, alleging, in relevant part, that they were strictly liable under Ohio’s dog-bite statute for the injuries caused by Buckshot. The trial court granted summary judgment to the Defendants, finding that they were not liable to Mota because he was trespassing at the time of the attack. On appeal to the Eighth Appellate District, the central issue was whether Mota, under Ohio’s bounty hunter statute, R.C. 2713.22, was “privileged” to enter the Defendants’ home because he was acting on a warrant to arrest their fugitive son, such that it defeated the dog-bite statute’s “trespasser” defense.
Invoking the legal principle that “one cannot assert a privilege as both a shield and a sword,” the appeals court ruled that although the bounty hunter statute shields bounty hunters from criminal and civil liability for trespass committed in the line of work, it does not “negate the bounty hunter’s status as a trespasser . . . as a means to give the bounty hunter an advantage in the pursuit of recovering money damages.” In this respect, the court held that Mota’s actions at the time he was attacked by Buckshot satisfy the elements of criminal trespass under the dog-bite statute, given that Mota had entered the Defendants’ premises without their consent and without the privilege to do so.
Mota highlights the breadth of the “trespasser defense” within Ohio’s dog-bite statute. In this regard, it is undeniable that Mota was on the Defendant’s property to lawfully arrest a fugitive. Curiously, however, the appeals court held that Mota had criminally trespassed onto the Defendant’s property based merely on the fact that his presence was without their consent. Should Mota survive further appellate review, property owners who harbor dogs will be protected from strict liability for dog-bites to “trespassers” who enter their property without consent, notwithstanding the justifiable, or legal, reason for their entry.
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