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9th District finds abuse of discretion in vicious dog case
TRACEY BLAIR
Legal News Reporter
Published: June 20, 2017
The 9th District Court of Appeals has reversed a Stow Municipal Court ruling in a vicious dog case.
The chain of events began on July 13, 2015, when Trixie Cleminshaw heard two dogs fighting near the street outside her Hudson home.
According to appellate records, Cleminshaw tried to separate the larger dog, a pit bull named Edwin, from the smaller dog, Rudy. While breaking up the fight, Edwin bit Cleminshaw once on the hand.
Summit County Animal Control then gave Edwin’s owner, Marvin B. Pflaum, notice that they had reasonable cause to believe that Edwin was a dangerous dog. A magistrate determined that Edwin did not meet the statutory definition of a “dangerous dog” under R.C. 955.11(A)(1)(a).
In July 2016, the trial court overturned the magistrate’s decision, finding clear and convincing evidence that Edwin was a dangerous dog.
On appeal, Pflaum argued that the trial court abused its discretion by reversing the magistrate’s decision.
In her 3-0 ruling, 9th District Judge Donna J. Carr noted that Cleminshaw needed significant treatment due to the dog bite.
Both parties stipulated that the smaller dog did not provoke Edwin.
However, the magistrate said Animal Control did not meet its burden that Edwin acted “without provocation” in biting Cleminshaw.
The magistrate found that “while Ms. Cleminshaw’s actions were clearly appropriate and courageous, the magistrate cannot conclude that the state has proven its case by clear and convincing evidence.”
Animal Control argued that Cleminshaw intervened in the dog fight to save the life of Rudy -- not to provoke Edwin.
The Stow judge agreed, determining that the pit bull put the entire situation in motion that caused a person to get injured, and should be declared a dangerous dog.
Judge Carr disagreed, writing:
“In reversing the magistrate’s decision, the trial court acknowledged that Cleminshaw struck Edwin and pulled on its collar, but stressed that Cleminshaw’s motivation for taking such action stemmed from her desire to save a smaller dog. Although the trial court focused on Cleminshaw’s noble intentions, the question of whether a person `tormented’ a dog does not necessarily pivot on whether the person acted with malicious intent.
“… Here, there is no evidence to suggest that Edwin would have bitten Cleminshaw if she had not struck the dog and pulled on its collar. Under these circumstances, we are compelled to reject the trial court’s conclusion that Edwin acted without provocation when it bit Cleminshaw.”
Appellate judges Julie Schafer and Thomas Teodosio concurred.
The case is cited Pflaum v. Summit Cty. Animal Control, 2017-Ohio-4166.