Bexley v. Selcer

Citations: 129 Ohio App. 3d 72; 716 N.E.2d 1220Docket: No. 97APC08-1118.

Court: Ohio Court of Appeals; July 14, 1998; Ohio; State Appellate Court

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Susan J. Selcer appeals a judgment from the Franklin County Municipal Court, Environmental Division, where she was found guilty of violating Bexley Codified Ordinances 618.01(b), concerning a dog leash requirement. The case was tried on August 13, 1997, with Wendy Avner testifying for the city. Avner, a neighbor, observed Selcer's dog on her property without a leash on May 26, 1997, and documented the incident on video. Avner identified the dog as Selcer's and later saw Selcer retrieve the dog from the street.

Selcer, representing herself, acknowledged ownership of the dog and explained measures taken to confine it, including installing an invisible fence and obtaining professional training. She testified that following the incident, technicians found a loose wire in the fence that may have caused a malfunction. Selcer claimed she does not allow the dog off her property without a leash, although she admitted the dog had previously left her premises due to a battery failure in its collar.

The city argued that the ordinance imposed strict liability and asserted that Selcer acted recklessly by allowing the dog to escape, given her prior knowledge of the issue. The trial judge stated there was no intentional wrongdoing but concluded Selcer violated the ordinance due to the previous failure of the invisible fence and her awareness of potential risks. Selcer was fined $25.

In her appeal, Selcer raises five assignments of error: (1) the court's failure to interpret the ordinance as related to running-at-large cases rather than as strictly liability; (2) the court's abuse of discretion in finding she allowed her dog to leave her property; (3) the application of a "more probable than not" burden of proof rather than the "beyond a reasonable doubt" standard; (4) an erroneous finding regarding the failure of the invisible fence; and (5) a failure to recognize that her dog's prior escape was due to a battery issue rather than a fence malfunction, arguing that maintaining a fresh battery was standard care for an invisible fence.

Defendant's first, second, and fourth assignments of error are interrelated. Bexley Codified Ordinances 618.01 prohibits owners from allowing their animals to run at large on public property or beyond their premises without proper restraint. Specifically, Section 618.01(b) requires dogs to be leashed if off their owner's property, and Section 618.01(c) mandates that dogs must be confined or restrained to prevent escape. The defendant contends that her conviction under Section 618.01(b) necessitates proof that she permitted the dog to leave her premises, asserting that evidence showed the dog was fenced and left without her fault. She argues the trial court's interpretation of "permit" was incorrect, claiming it imposed a strict liability standard. Conversely, the city argues that the trial court did not impose strict liability but found the defendant acted recklessly due to the previous failure of the invisible fence. Under R.C. 2901.21, if a statute does not specify culpability, recklessness suffices for an offense. The trial court, while not explicitly finding recklessness, indicated awareness of the potential failure of the invisible fence, which the defendant argues leads to an unfair strict liability outcome.

The court found that the evidence was inadequate to establish that the defendant acted recklessly regarding the incident involving her dog. According to R.C. 2901.22(C), recklessness requires a person to heedlessly disregard a known risk, but the defendant demonstrated efforts to mitigate risks after a previous escape of the dog, such as switching to a monthly battery replacement plan for the dog's collar and promptly attempting to retrieve the dog when notified of its absence. The court concluded that these actions did not reflect a conscious disregard for the consequences or a significant risk of recklessness or negligence.

The discussion then shifted to whether the ordinance in question imposes strict liability, which would not require proof of culpability for a conviction. The term "permit" is defined as allowing or failing to prevent an act, suggesting that some affirmative action or omission is necessary. The ordinance indicates that an animal running at large is prima facie evidence of a violation, similar to R.C. 951.02, which was previously interpreted by the court to mean that the mere presence of an animal at large is insufficient to establish a violation; there must also be proof that the owner permitted it. Thus, the court emphasized the need to demonstrate that the defendant allowed the dog to run at large to sustain a conviction under the ordinance.

An animal owner may allow their pet to roam freely through intentional or negligent actions. The imposition of strict liability under R.C. 951.02 conflicts with the statute's language, which establishes a rebuttable presumption of negligence when an animal is at large. To prove that an owner "permitted" a dog to leave their property, evidence must show intentional or negligent actions. In the case at hand, no evidence indicated that the defendant allowed the dog to leave the premises. Unlike a similar Columbus ordinance that explicitly establishes strict liability, the Bexley ordinance lacks such intent. The court does not need to address whether the Bexley ordinance suggests strict liability since the defendant was not charged under that section. Without evidence of recklessness and since the ordinance does not impose strict liability, the defendant's conviction and fine for violating Bexley Codified Ordinances 618.01(b) are reversed. The first, second, and fourth assignments of error are upheld, while the third and fifth are deemed moot. The trial court's judgment is reversed and the case is remanded for further proceedings.