Ideabank Submission – Cover Sheet

Summer 2015

1. Type of submission: Open memorandum assignment where students have to research and analyze the Ohio dog bite statute (section 955.28) and the elements for a common law negligence claim. To create this assignment, I revised the closed memo problem that Professor Shelia Miller (University of Dayton) posted on the 2012 ideabank website.

2. Jurisdiction: Ohio

3. Synopsis of issue: I used this assignment for the final graded memo problem to teach students how to write a complete objective memo. Students represented a landlord in a potential lawsuit by the landlord’s neighbor because the tenant’s dog attacked and bit the neighbor’s child. Students had to determine whether the client would likely prevail against a claim under the Ohio dog bite statute and a claim for common law negligence. The main issue under the statute is whether the client was a “harborer” of the tenant’s dog (owners, keepers, and harborers of dogs are strictly liable). The main issues for the common law negligence claim are whether the client knew that the dog was vicious and whether the dog was kept in a negligent manner.

4. Documents Included: I have attached (1) the assigning memo for students and (2) the transcript of the interview with the client. If you email me, I can send to you several memos that my students drafted and an outline of the relevant rules and cases. I can also send to you a PDF of the diagram of where the injury occurred.

5. Submitted by: Eric Voigt, Faulkner University, Jones School of Law, .

Posner, Easterbrook & Associates

MEMORANDUM

TO: Junior Attorney

FROM: Mr. Posner

DATE: September 8, 20____

RE: Roberts/Zappa: Potential Lawsuit Against Jennifer Zappa

______

I just met with a new client, Jennifer Zappa, about a potential lawsuit against her in her capacity as a landlord. She recently received a letter from her neighbor demanding that she pay for the neighbor’s daughter’s large medical expenses. Ms. Zappa refused to pay. The neighbor’s nine-year-old daughter was severely bitten by a pit bull on property owned by Ms. Zappa. During our meeting last week, Ms. Zappa provided me with her version of the events surrounding the dog bite incident. I have briefly summarized our interview below, but please read the attached transcript carefully before you start researching.

Ms. Zappa rents to her son, Tim Zappa, the house next to her house. Both houses are located in Greene County, Ohio. Although her son does not own a dog, he has allowed his girlfriend and her dog, Sassy, to stay at the rented house. Ms. Zappa knew that the dog was staying there. The dog is a pit bull mix. On June 5, 2012, the pit bull was tied to a dog run on the side yard of her son’s house, and it bit the neighbor’s daughter, Peyton, when she entered the yard. The little girl was rushed to the hospital by her mother, Allison Roberts.

To advise Ms. Zappa on whether she will prevail in any lawsuit, I would like you to research and draft a memorandum analyzing potential causes of action that the neighbor may bring against Ms. Zappa for her daughter’s injuries. When evaluating potential claims against Ms. Zappa, you should consider whether Ohio has any statute applicable to this matter. I dealt with a similar case many years ago, and I think one exists. You should also consider any common law claims that the neighbor could assert against Ms. Zappa, but do not research whether the neighbor has any claims against any other party.

I have also assigned part of this matter to a few senior associates. One senior associate will research whether the little girl trespassed on the yard and whether Ms. Zappa’s conduct was the cause of the little girl’s injuries. For now, assume that the girl did not trespass and that Ms. Zappa caused the injuries. Another senior attorney will calculate the maximum amount of damages that the neighbor could recover (including punitive damages), assuming the neighbor can prove liability. Thus, do not address any of those three issues in your memorandum. Please focus your research on the specific theories of tort liability that could form the basis of a lawsuit. Your memorandum should state the likelihood of success for each potential claim in light of the assumptions that I mentioned above.

You will interview Ms. Zappa soon. You need to do some research for this matter before that interview so that you know what additional information you need from Ms. Zappa to accurately analyze her case. After you interview Ms. Zappa, if you determine that you need more information, post a message to my secretary, Ms. TWEN (on the forum page of TWEN), and she will get the information for you.

Interview with Client

[Professors: I have highlighted in yellow the facts that students should obtain during the class interview with the client. If you hold a live client interview, you should delete all the facts in yellow and delete my bracketed comment below before giving this document to students.]

Below is a transcript of an interview with our new client, Jennifer Zappa, about a threatened lawsuit against her. Jen lives in Bellbrook, Ohio, in Greene County and was recently interviewed at our office.

Atty: Before I begin to ask you questions about the case, may I record our conversation? I want to make sure we remember all the details when researching your case.

Ms. Zappa: Certainly—go ahead and record it.

Atty: Thanks. As you know, your neighbor has sued you because a dog bit her daughter. Is it your dog that was involved?

Ms. Zappa: No—it was my son’s girlfriend’s dog—a mean pit bull mix. I hated that dog before this whole thing started, and now to think it is going to cost me at least the cost of a lawyer; it just kills me.

Atty: When did this happen? The complaint does not say.

Ms. Zappa: It happened June 5 of this year. Poor little girl—she is only nine-years old. Her name is Peyton Roberts.

Atty: Okay, so was the dog on your property at the time?

Ms. Zappa: Well not exactly. My son Tim rents the house next door to me. I own my house and the house next door, and Tim has lived next door for about three years. He pays me rent every month. The dog was there at the time.

Atty: What type of place is it?

Ms. Zappa: Single-family house. It is not a duplex.

Atty: And does his girlfriend and her dog live there?

Ms. Zappa: Well pretty much lately—I think she still has her own apartment in the City of Dayton, but she spends most of her time next door—at least for the last six months. And she brings the dog with her to Tim’s place.

Atty: Did your son sign a lease?

Ms. Zappa: No, but he pays the same amount of rent that the last tenant paid. I guess we have a month-to-month agreement because I have never used a lease, even when I rented to the last tenant.

Atty: Have you always allowed your tenants to have a dog?

Ms. Zappa: Sure; I generally like dogs and have never had a problem before.

Atty: Who does the repairs?

Ms. Zappa: I usually hire somebody to fix anything that breaks. The last thing to break was the hot water heater so I had a repairman install a new one.

Atty: Did you have to give Tim prior notice about the repairman coming over?

Ms. Zappa: Not sure if I had to, but I did tell him a day or so before he arrived. I generally give him several hours notice before I enter to check out a problem and usually give him more warning if I have a repairman coming over.

Atty: Have you ever told your son that you do not want the dog there?

Ms. Zappa: Well—my son and his girlfriend both know that I hate their pit bull. It is a very yappy mean dog. I fed it one time and can you believe that it yapped at me the entire time? And it has bitten my son once. I am constantly yelling at the dog. And I refused to take care of it when they were out of town—this is when the dog bit the little girl. But I never expressly told Tim or his girlfriend that they must get rid of the dog or be kicked out, and I am not sure if I had the authority to do so given that I have no written lease. Tim did indicate to me that the dog will not stay there forever. He said something about the dog chewing up his furniture.

Atty: Do you know why the dog bit Tim?

Ms. Zappa: I believe that Tim was giving the dog a new yummy treat and the dog grabbed the treat—and his hand—at the same time. Tim did not have to go to the doctor or anything.

Atty: Has the pit bull ever bitten anybody other than Tim that one time?

Ms. Zappa: Hmmm . . . Maybe I shouldn't tell you . . . Yesterday, Tim told me about two other incidents. He said that the pit bull has bitten two of his friends. I believe that one person was bitten on the hand and the other person was bitten on the ankle. I remember Tim telling me that he had to pay for the visits to the doctors, and they needed stitches.

Atty: Did you just learn yesterday about the pit bull biting Tim?

Ms. Zappa: Oh no. I knew about that even before the little girl was bitten.

Atty: Has the pit bull every shown signs of aggression toward you?

Ms. Zappa: It often barks at me but has never bitten me. In fact, a few times I have seen the dog play with some adults who come up to it when they see it in the yard from the sidewalk. But then again, I have seen the dog bark at a few of my friends, and I think it growled once at another friend.

Atty: Why do you think the dog growled that one time?

Ms. Zappa: Hmmm . . . It was my friend Becky. I’m not sure. He met her several times, but growled only that one time.

Atty: When the dog barks, what does it do with its tail?

Ms. Zappa: Oh goodness; I have no idea.

Atty: Are you afraid of the dog?

Ms. Zappa: When it is barking, sort of.

Atty: Let’s talk more about the day the little girl was bitten . . . Who was taking care of the dog?

Ms. Zappa: Tim and his girlfriend, Lucy, went to the Rock Hall of Fame in Cleveland for the weekend, and got a neighbor, Erin, to take care of the dog. Like I said—I told them I would not do it when they asked me. She came in twice a day to feed and walk the dog and let it out for awhile.

Anyway, they have a dog run in their side yard that the dog goes on very often. It is like a 15-foot laundry line, and one end of a chain attaches to a roller thing attached to the laundry line and the other end attaches to the dog’s collar. The chain moves along the line so the dog can run back and forth yapping at anything that goes by or any squirrel or chipmunk in the yard.

On the day the dog bit little Peyton, Erin had attached the dog to the dog run, but instead of attaching the chain on the dog run directly to the dog’s collar, she had the dog on her leash and attached the end of the leash to the chain on the dog run. This gave the dog an extra 6 or 8 feet so it could reach to the sidewalk. I noticed that she had done this the previous two days, but never got around to telling her how to properly attach the dog run.

Anyway, on the day of the injury, I saw that the dog was able to get to the sidewalk and was planning to go out and tell Erin not to use the leash on the dog run. But I got distracted with something for a few hours and then all of a sudden—and before I got out there—I heard the little girl screaming bloody murder. I looked out and there was Sassy (that’s the dog’s name) and Peyton next to the sidewalk and there was an awful lot of blood. By the time I got out there, her mom, Allison, was there and she called the paramedics who took poor Peyton to the hospital.

Atty: Do you know the extent of Peyton’s injuries?

Ms. Zappa: Oh . . . that stupid dog bit her in two different places on her face; she required a lot of stitches and according to her mother will probably have permanent scars. I feel really bad, and I can blame Lucy and maybe Tim, but I don’t think that I should be blamed. Allison Roberts told me she plans to sue Lucy, Tim, me, and Erin.

Atty: Do you know what happened just before Sassy bit Peyton? Do you know if there were any witnesses?

Ms. Zappa: I overheard Peyton tell her mom that she walked onto the yard to pick up her doll that fell onto Tim’s yard and the next thing she remembers is seeing Sassy jump at her. She said that she had not even touched the dog before it bit her. None of the neighbors seems to have seen what happened.

Atty: Was Sassy usually kept in the side yard when he was out?

Ms. Zappa: Yes—he is almost always on the dog run when he was out there. Normally, the dog run will not allow him to come close to the sidewalk.

Atty: Who installed the dog run?

Ms. Zappa: Tim did for his girlfriend.

Atty: Who maintains the yard and uses the yard generally?

Ms. Zappa: Tim cuts the grass at his place and takes care of the trees and other plants. Recently, I planted a row of shrubs along the side of his yard, and I keep a small workshop in the back part of the side yard. I do pottery as a hobby and that is where my wheel and my kiln are located. When I bought the property ten years ago, I started using the existing shed for my pottery workshop. It was really perfect for the use. Even before Tim lived next door, I had an agreement with the prior tenant that I would be allowed to use the shed.

Atty: Was the agreement written?

Ms. Zappa: No, just an oral agreement.

Atty: Does Tim ever use the shed?

Ms. Zappa: Well, he does occasionally but certainly not as often as me.

Atty: Do you think that you could sketch a drawing of the shed, the dog run, and the house so that I can get an idea of the layout? Here is a paper and pen.

Ms. Zappa sketches [Professors: I plan to have my client draw a sketch while the students are interviewing him – as long as they ask for one.]