A Dayton Family's Case Against the Dog Warden Can Go Forward: Schneider v. Kumpf

Published August 23, 2016 · Ohio Court Decisions

Some deaths are especially hard to accept because they seemed so preventable: the person who died asked for help again and again, and help did not come.

On July 29, 2016, the Second District Court of Appeals, which hears appeals from Montgomery County and the surrounding counties, decided Schneider v. Kumpf, 2016-Ohio-5161. The case arises from the death of Klonda Richey, a Dayton woman who was killed in February 2014 on her own property on East Bruce Avenue by two dogs kept at the house next door. The court's decision allows her estate's wrongful death case against the Montgomery County dog warden to continue. It matters to any Ohio family whose loved one died after officials were warned about a danger.

What the complaint alleged

Because the case was dismissed at the very beginning, the court of appeals had to accept the allegations in the complaint as true for purposes of the appeal. Nothing has yet been proven at trial.

According to the opinion, Ms. Richey had lived in her home for at least 24 years. Her neighbor began living next door in 2011 with two dogs, and she began having problems with the dogs no later than August 2012. The complaint alleged that she called the regional dispatch center about 13 times and called the county's Animal Resource Center at least 13 times, that she paid for a fence and a security camera, and that she sought a civil protection order, which was denied. Officers responded on several occasions and issued or posted written warnings, but, according to the complaint, the dogs were never impounded or declared dangerous or nuisance dogs.

The complaint also alleged that the county dog warden had shifted the office away from enforcement, told deputies to write fewer citations, stopped patrols, and had calls during business hours routed to voicemail. According to the complaint, every one of Ms. Richey's calls to the Animal Resource Center went to voicemail.

What the trial court did

The administrator of Ms. Richey's estate filed a wrongful death and personal injury action. The amended complaint was brought against the dog warden individually and alleged that he acted recklessly.

The trial court refused to dismiss the case on immunity grounds. It said it could not find, at that early stage, that the warden's conduct was merely negligent rather than reckless. But it dismissed the case anyway, on the theory that Ohio law allows a claim for harm caused by a dog only against the dog's owner, keeper, or harborer.

What the court of appeals decided

The Second District reversed. Its holdings, in plain terms:

1. Liability is not limited to owners, keepers, and harborers. The court reviewed Ohio dog-bite law and decisions from other states and concluded that a claim for damages is not restricted to the people who own or keep the dog. Ordinary negligence principles can apply to others.
2. The dog law itself does not create a private lawsuit. The court held that the Ohio dog statutes, R.C. Chapter 955, do not give an injured person or family a private right to sue a dog warden simply for failing to perform statutory duties.
3. Whether the warden owed Ms. Richey a duty needs more facts. Because the claim is about a failure to act, the question is whether a special relationship existed that created a duty to protect her. The court said the allegations fell somewhat short of the facts in other cases where such a duty was found, but that the issue should be decided by the trial court on a full record, possibly at summary judgment.
4. Recklessness was adequately alleged. The court agreed with the trial court that a trier of fact could reasonably find the warden's conduct reckless, based on the allegations.

The case was sent back to the trial court so the estate can conduct discovery. One judge concurred in the judgment only, writing separately about the remaining issues.

Why this matters to families

This decision does not mean the estate will win. It means the family gets the chance to gather evidence and have the facts decided, rather than having the case thrown out at the door.

It also shows how the law treats public employees in Ohio. Under R.C. 2744.03(A)(6), an employee of a city, county, or other political subdivision is generally immune from liability. But the immunity does not apply if the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner. That is why the allegations of recklessness in this case were so important. Ordinary carelessness is often not enough; disregard of a known danger can be.

There are hard limits too, and we want to be honest about them. The court held that the dog statutes alone do not create a lawsuit against a warden, and the estate still has to prove a duty owed to Ms. Richey specifically. Claims like this are difficult. They depend on records: call logs, dispatch recordings, warnings issued, internal policies, and what officials knew and when. Our page on deaths involving government explains more about these cases, and our page on premises and negligent security deaths covers cases where a property owner ignored a known danger.

What a family can do now

If your loved one complained to a landlord, a business, a public agency, or the police about a danger before he or she died, those complaints may be among the most important evidence in your case. Some practical steps:

• Keep everything. Save texts, emails, voicemails, photographs, video, and any letters or citations your loved one received or sent.
• Request records early. Public agencies keep call logs and reports, but recordings are not always kept forever.
• Write down what you remember. Who did your loved one talk to, when, and what was promised?
• Mind the deadline. Ohio's wrongful death statute, R.C. 2125.02(D)(1), generally requires the action to be filed within two years after the death. Cases against public bodies can involve additional rules and defenses, so it is wise to talk with a lawyer well before then.

The wrongful death claim is brought by the personal representative of the estate for the benefit of the surviving spouse, children, parents, and other next of kin, under R.C. 2125.02(A)(1). You can read more about how Ohio wrongful death law works. And if a criminal case is also involved, our earlier post on the DuBose family's settlement explains how civil and criminal cases fit together.

As a former Dayton police officer and sergeant, I know how many calls public agencies field. I also know that when the same address and the same danger come up again and again, families are right to ask whether anyone noticed.