Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

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Posts tagged strict liability
R.C. 3109.10: Strict Parental Liability for a Child's Assault

     A school-yard fight.   A neighborhood bully.  An opposing player who loses his cool.   There can be a number of scenarios where your child can become the victim of a willful and malicious assault.   Hopefully the most serious injury will be a bruised ego.  However, if your child suffered serious injury, which required medical attention, you do have an avenue to recover damages.

     In Ohio, R.C. 3109.10 imposes strict liability on the parents of a child who willfully and maliciously assaults another.   Strict liability imposes liability on an individual without the need to prove negligence or some other type of wrongful conduct.  Specifically, R.C. 3109.10 provides, in relevant part:

Any person is entitled to maintain an action to recover compensatory damages . . . in an amount not to exceed ten thousand dollars and costs of suit . . . from the parent of a child under the age of eighteen if the child willfully and maliciously assaults the person by a means or force likely to produce great bodily harm.

     Under this section, “parent” is defined as (1) both parents if married; (2) the residential parent and legal custodian if there is a custody order; or (3) the custodial parent in the absence of a custody order.    In other words, the Revised Code imposes strict liability on the parent or parents who have custody and control over the minor child; typically this is the parent or parents for whom the child resided with at the time of the assault.     

      Next, you'll have to show that the child used forced likely to cause “great bodily harm.”   Interestingly, “great bodily harm" is not defined in the Revised Code, however, some Ohio courts have equated it to “serious physical harm” which includes, but is not limited to, the type of harm that may cause a broken bone, loss of consciousness, scarring, hospitalization, or even death. 

     Further, in order to successfully bring a lawsuit under R.C. 3109.10, there is NO requirement that the child even be charged with a criminal offense or found delinquent in juvenile court as a prerequisite to strict parental liability.

     While R.C. 3109.10 provided means to recover damages against parents who did not directly cause the harm, it also limits the amount of damages to $10,000.00 (plus court costs.)   For someone whose injuries required any type of hospitalization or surgery, the $10,000.00 cap on damages may very result in inadequate compensation.  

     Accordingly, alleging a claim of negligent supervision against the parents may be necessary.  In this case, plaintiff is claiming the parents are liable for their own negligence.   Specifically, a plaintiff must show that : (1) the parents knew of their child’s particular reckless or negligent tendencies (2) they knew they needed to exercise control over him, (3) the parents had the ability to exercise control, and (4) the parents failed to exercise that control.  Ohio courts have found that parents of minor children can be sued for negligent supervision because they have a duty to exercise reasonable control over their children in order to prevent harm to third persons, when the parents have the ability to control the child and they know, or should know, that injury to another is a probable consequence.   This is significant as it may very well allow your claim to exceed the $10,000.00 cap established by R.C. 3109.10.

     If your child has sustained an injury as a result of malicious attack by a neighborhood or schoolyard bully, please contact Scott for a no cost, no obligation consultation and case evaluation.

Recovering for Injuries Sustained from a Dog Bite

According to the American Veterinary Medical Association, approximately 37% of American households – over 43 million – own a dog.   Most dog-owners (myself included) believe that our pets are harmless and would never bite anyone or anything.   However, that is not always the case.  I have represented many Ohioans who have been seriously injured by vicious attacks of a family dog.   Those who are fortunate, walk away with scratches or small puncture wounds.   Others’ injuries are more serious: permanent scarring, nerve damage, broken bones, loss of muscle tissue, or even loss of limbs.    

In Ohio, a person injured by a dog bite may present two different types of theories of liability: common-law negligence and statutory liability.  Under a negligence theory, a plaintiff is essentially claiming that the defendant was negligent in keeping the dog in the first place.  As such, the injured party must establish: (1) the defendant owned or harbored the dog; (2) the dog was vicious; (3) the defendant knew of the dog's viciousness; and (4) the defendant was negligent in keeping the dog.  To establish liability, the plaintiff is usually required to show that the dog previously bit or attacked another individual.   This is known as the “one-bite rule.”   As you can imagine, this theory of liability can be difficult to establish.

The second theory of liability is under Revised Code § 955.28(B).   This statute imposes strict liability upon an “owner, keeper, or harborer of a dog” for injuries to individuals.  Strict liability requires no specific culpability on the part of the owner – i.e. negligence, recklessness, or knowledge.   Instead, and as one Ohio court noted, R.C. § 955.28(B) “imposes an absolute liability on the owner or keeper of a dog for any damage or injury caused by that dog.”  Specifically, R.C. § 955.28(B) provides, in relevant part, as follows:

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, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, . . . was teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.

Accordingly, in order to maintain a strict liability action under R.C. § 955.28(B), an individual must establish: (1) that the defendant is the owner, keeper, or harborer of the dog; (2) that the injury was proximately caused by the dog's actions; and (3) the monetary amount of the damages.  Unlike the negligence theory of liability, a strict liability action under R.C. § 955.28(B) is much easier to prove, however, that does not mean it is indefensible.

Under R.C. § 955.28(B), an individual may not recover for injuries they sustained from a dog bite if: (1) s/he was trespassing; (2) s/he was committing a criminal offense; or (3) s/he was teasing, tormenting, or abusing the dog.   Likewise, an individual cannot recover for injures sustained by their own dog.     

If you have sustained an injury as a result of a dog bite, please contact Scott for a no cost, no obligation consultation and case evaluation.