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Do you have to prove a dog is viscious to win your dog bite case ?

Dog Bites

                 I ran across an interesting 10th District Appellate Case on the Ohio Supreme Court website concerning an individual who got bit sixteen by german shepherd.  The case is Dillon v. Ohio Department of Rehabilitation, 2023-Ohio-942. You can find it here:

               The facts of the case are this. An inmate was part of a rehabilitation program called Pawsibility. The inmates would train dogs to be helper dogs, they also would train correctional employees’ personal dogs.  She was tasked with working with a german shepherd named Freedom. She had taken Freedom out of a kennel on the prison grounds. The dog was not leashed yet, and for whatever reason, attacked the inmate, biting her about sixteen times on both arms. One key point is that there was no evidence that the dog was vicious or that there was knowledge that the dog was viscious.

                She filed a lawsuit against the Ohio Department of Rehabilitation to recover damages for dog bite. Ultimately she failed at the Court of Common Pleas, and filed the appeal. Ulitmately she lost her appeal as well.       

                In this case there were three different directions she could have gone after: negligence lawsuit against the Ohio Department of Rehabilitation, file a statutory dog bite lawsuit, or a common law dog bite lawsuit. I’ll discuss how the court breaks these elements down and applies to the situations in her case. As always with any dog bite situation consult with an attorney including one of the dog bite lawyers at Malek & Malek.  


                The ODRC owes prison inmates a duty of reasonable care and protection from dangerous conditions about which ODRC knows or should know. The Ohio Courts defines “reasonable care” in these circumstances as “that degree of caution and foresight an ordinarily prudent person would employ in similar circumstances and includes the duty to exercise reasonable care to prevent an inmate from being injured by a dangerous condition about which the state knows or should know.” But Ohio courts are quick to qualify that “prison officials owe a duty of reasonable care and protection from unreasonable risks to inmates, they are not the insurers of inmates’ safety”

                Bottomline its going to be fairly difficult to prove a prison has been negligent. In Dillon’s case she was not successful. But the 10th district described a case where the plaintiff was successful in her negligence suit against the ODRC.

                It was the 2001 case, Pickett v Department of Rehab & Corrections, 2001 Misc Lexis 64. A dog was allowed to be part of a training rehabilitation prison program, even though that dog had bit a child one month prior. The court in that case found that the prison breached its duty of care in protecting the inmate from being injured in a dangerous condition when it knew or should have known the dog might bite the inmate.

                The plaintiff in Dillon didn’t really travel down this road, and her situation was different because the ODRC did not know the Freedom, the german shepard, was dangerous when they allowed it to participate in the Pawsibility program.


                In Ohio you can pursue dog bite case under common law or statute. You might pursue a dog bite case under both theories. You might be limited to pursue a dog bite case under only one theory.

                Ohio Revised Code 955.28 imposes strict liability upon the owner, keeper, or harborer of a dog for any injury, death, or loss to person or property that is caused by the dog subject to certain exceptions. The court doesn’t go into this theory in this case. My assumption is the plaintiff didn’t pursue a dog bite case under this theory because some element was clearly not satisfied.


                To pursue a common law dog bite case in Ohio, a plaintiff and her dog bite lawyer must prove all of the elements: 1.) the defendant owner or harbored the dog; 2.) the dog was vicious; 3.) the defendant knew of the dog’s viciousness; and 4.) the dog was kept in a negligent manner after the keeper knew of its viciousness.

                The court used the statutory definition for a vicious dog, specifically R.C. 955.11(A)(6)(b), a vicious dog is a dog that, without provocation, has killed or caused serious injury to any person. Serious injury is defined in R.C. 955.11(A)(5): any physical harm that a.) carries a substantial risk of death; b.) involves a permanent incapacity, whether partial or total, or a temporary, substantial incapacity; c.) involves a permanent disfigurement or a temporary, serious disfigurement; or d.) involves acute pain of a duration that results in substantial suffering or any degree of prolonged or intractable pain.

                The plaintiff common law dog bite case failed because she failed to prove that Freedom was vicious. “Was” implying whether or not Freedom was deemed vicious before Freedom bit the inmate in the Pawsibility program. Furthermore, even if Freedom was vicious, the plaintiff and her dog bite lawyer would need to have proven that ODRC knew that Freedom was vicious. As result she does not recover for this dog bite case.

                Now, if for whatever reason, ODRC decided to leave Freedom in the Pawsibility program, and Freedom then bit another inmate, that inmate might be able to prevail under a common law dog bite case because Freedom was vicious and ODRC knew Freedom was a vicious dog.


                Dog bite cases hinge on fulfillment of each element of a case. That’s why it’s crucial that you hire a competent and experienced dog bite attorney; otherwise, you might run into a situation like the plaintiff did in the Dillon case. 

              If you have a dog bite case don’t hesitate to contact one of the dog bite attorneys at Malek & Malek for a free legal consult to determine whether you have a case.