Mosholder et al v. Lowe's Home Centers, LLC
Filing
11
Memorandum Opinion and Order: For the reasons set forth herein, defendant Lowe's motion to dismiss is granted as it pertains to plaintiff Krystal Mosholder's claims against Lowe's for strict liability, Ohio's common law lia bility; and bad faith. Lowe's motion to dismiss is denied as it pertains to Krystal Mosholder's premise liability claim and Daniel Mosholder's derivative loss of consortium claim. (Related Doc. No. 6 ). Judge Sara Lioi on 3/11/2019. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KRYSTAL MOSHOLDER, et al.,
PLAINTIFFS,
v.
LOWE’S COMPANIES, INC., et al.,
DEFENDANTS.
)
)
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 5:18-CV-1325
JUDGE SARA LIOI
MEMORANDUM OPINION AND
ORDER
Before the Court is the motion to dismiss filed by defendant Lowe’s Home Centers, LLC1
(Doc. No. 6 [“Mot.”]). Plaintiffs filed their opposition (Doc. No. 9 [“Opp’n”]), and defendant filed
a reply (Doc. No. 10 [“Reply”]). For the reasons discussed herein, defendant Lowe’s Home
Centers, LLC’s motion to dismiss is granted in part and denied in part.
I.
BACKGROUND
On or about March 22, 2018, plaintiff Krystal Mosholder (“Krystal”) was shopping in a
store owned by defendant Lowe’s Home Centers, LLC (“Lowe’s”), located at 218 Nicholas Way,
Kent, Ohio, 44240 (“the Store”). (Doc. No. 1, Complaint [“Compl.”] ¶¶ 2, 5.) At that same time,
defendant Jane Doe 1 (“Jane Doe 1”) and her dog were also in the Store. (Compl. ¶ 7.) While in
the Store at that time, Jane Doe 1’s dog bit Krystal. (Id.) Krystal suffered two dog bites, had to
visit the emergency room at Akron General Medical Center, and had to undergo a rabies treatment
program, which included no fewer than sixteen shots over several weeks. (Id. ¶ 10.)
1
Improperly identified in the complaint as “Lowe’s Companies, Inc.”
Krystal and her husband plaintiff Daniel Mosholder (“Daniel”) filed this suit in the Portage
County Court of Common Pleas against Lowe’s, Jane Doe 1, and defendants Jane Does 2–10
(“Jane Does 2–10”).2 In the complaint, Krystal brought claims for: (1) strict liability pursuant to
Ohio Rev. Code § 955.28(B) against all defendants, (2) negligence against all defendants, (3)
premise liability against Lowe’s and Jane Does 2–10, and (4) a bad faith claim against Lowe’s;
additionally, Daniel brought a loss of consortium claim against all defendants.3
Lowe’s properly removed the case to this Court pursuant to 28 U.S.C. § 1441(b). Lowe’s
then filed its motion to dismiss plaintiffs’ claims against Lowe’s for failure to state a claim. The
issue is now ripe for the Court’s consideration.
II.
STANDARD OF REVIEW
In the context of a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the sufficiency of the
complaint is tested against the notice pleading requirements of Fed. R. Civ. P. 8(a)(2), which
provides that a complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief[.]” Although this standard is liberal, Rule 8 still requires a complaint to
provide the defendant with “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.1955, 167 L. Ed. 2d 929 (2007). Thus, “[t]o
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,”
to state a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Twombly, 550 U.S. at 570).
Jane Does 2–10 are described as “either . . . owners of the dog in question in this [c]omplaint and/or owners, lessors,
lessees or otherwise operators of the real property at which [the Store] is located.” (Compl. ¶ 4.)
2
3
Plaintiffs caption a total of six claims in their complaint. However, the Court is unable to decipher what cognizable
claim, if any, the plaintiffs attempt to allege in what plaintiffs have captioned as their “First Claim.” (Compl. ¶¶ 5–
13.) At best, plaintiffs’ “First Claim” appears to be recitation of facts relevant to plaintiffs’ claims that follow.
2
A claim is facially plausible “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). Plausibility “is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.’” Id. “[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679
(quoting Fed. R. Civ. P. 8(a)(2) (second alteration in original)). In such a case, the plaintiff has not
“nudged [his] claims across the line from conceivable to plausible, [and the] complaint must be
dismissed.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 683.
A complaint need not set down in detail all the particulars of a plaintiff’s claim. However,
“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 678–79 (stating that this standard requires “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation”). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678
(citing Twombly, 550 U.S. at 555); see Gregory v. Shelby Cty., 220 F.3d 433, 446 (6th Cir. 2000)
(finding courts should not accept conclusions of law or unwarranted inferences couched in the
form of factual allegations). The complaint “must contain either direct or inferential allegations
respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid
v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (internal quotations marks
omitted), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
3
III.
DISCUSSION
In its motion to dismiss, Lowe’s claims that all Krystal’s alleged claims fail because she
has failed to plead any facts that suggest Lowe’s is liable for the dog bite that she suffered at the
Store. Further, Lowe’s claims that Daniel’s derivative loss of consortium claim fails as a matter of
law because all Krystal’s claims against Lowe’s fail.
A. Krystal’s Statutory and Common-law Claims Against Lowe’s for the Dog Bite
In the complaint, Krystal alleges that Lowe’s is liable for the dog bite she suffered on strict
(statutory) liability grounds and on common-law grounds.4 (Compl. ¶¶ 14–23.) Under Ohio law,5
a person who is injured by a dog can bring both statutory and common-law actions for damages.
Flint v. Holbrook, 608 N.E.2d 809, 812 (Ohio Ct. App. 1992) (citing Warner v. Wolfe, 199 N.E.2d
860, 862 (Ohio 1964)).
1. Lowe’s Strict Liability for the Dog Bite Under Ohio Rev. Code § 955.28(B)
Ohio Rev. Code § 955.28(B), 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[.]” In order
to recover damages under Ohio Rev. Code § 955.28(B), a plaintiff must prove that (1) the
defendant is an owner, a keeper, or a harborer of a dog, (2) the dog proximately caused the
Plaintiffs caption the third claim in their complaint, “negligence.” Plaintiffs then recite the elements for common law
liability for dog bites under Ohio law, rather than ordinary negligence. (Compl. ¶¶ 18–23.) As such the Court evaluates
this claim as a claim under Ohio’s common law for a vicious dog bite.
4
5
The Court applies Ohio choice of law rules because the case was brought in federal court in Ohio pursuant to diversity
jurisdiction. Charash v. Oberlin Coll., 14 F.3d 291, 296 (6th Cir. 1994) (citing Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941)). Further, Ohio choice of law rules direct the Court to apply
Ohio tort law to the instant action. See id. at 296–99.
4
plaintiff’s injuries, and (3) the monetary amount of damages. Flint, 608 N.E.2d at 812 (citing,
among authority, Hirschauer v. Davis, 126 N.E.2d 337, 339–40 (Ohio 1955)).
“The ‘owner’ is the person to whom the dog[] belong[s] and the ‘keeper’ is the one having
physical charge or care of the dog[].” Garrard v. McComas, 450 N.E.2d 730, 733 (Ohio Ct. App.
1982). “In determining whether a person is a ‘harborer’ of a dog, however, the focus shifts from
possession and control over the dog to possession and control of the premises where the dog lives.”
Godsey v. Franz, No. 91WM000008, 1992 WL 48532, at *3 (Ohio Ct. App. Mar. 13, 1992).
“‘[L]iability as a harborer . . . is established if the owner of the premises knowingly permits the
dog to live and make its home on such defendant’s premises.’” Id. at *3 (alteration in original)
(emphasis added) (quoting Sengel v. Maddox, 16 Ohio Supp. 137, 140 (Ohio Ct. App. 1945)); see
also Rucker v. Taylor, No. 92CA-E-12-044, 1993 WL 289912, at *2 (Ohio Ct. App. 1993) (finding
no statutory liability as a “harborer” when the dog was on the premises only temporarily). Nothing
is to be read into the statute that is not encompassed by the clear language used. Khamis v. Everson,
623 N.E.2d 683, 685 (Ohio Ct. App. 1993).
Here, plaintiffs allege that Lowe’s is liable under Ohio Rev. Code § 955.28(B) because
Lowe’s “allowed the dog[] to be present and/or harbored at [the Store] on the day in question with
knowledge of [its] dangerous propensity,” (Compl. ¶ 9), and “[a]s a direct and proximate result of
being attacked by the said dog [Krystal] has sustained serious physical injuries[.]” (Id. ¶ 15.) But
plaintiffs fail to plead any facts in their complaint that support an inference that Lowe’s owned or
harbored the dog responsible for biting Krystal. In fact, in their complaint, plaintiffs state that,
5
“[a]t all times material herein, said dog[ was] owned, kept and/or harbored by Jane Doe #1 and/or
Does 2 through 10.” (Id. ¶ 8.)
The dog’s presence at the Store is not enough to make it plausible that Lowe’s harbored
the dog that bit Krystal. Plaintiffs’ pleaded allegations suggest the dog was there only temporarily
with its owner, Jane Doe 1. Further, the mere conclusory statement in paragraph nine—that Lowe’s
harbored the at-issue dog—with nothing more, does not pass muster under Rule 8. As such,
plaintiffs’ claims against Lowe’s for strict liability under Ohio Rev. Code § 955.28(B) must be
dismissed for failure to state a claim upon which relief can be granted.
2. Lowe’s Liability for the Dog Bite Under Ohio Common Law
Under Ohio’s common-law theory, a plaintiff must show: (1) that the defendant owned or
harbored the offending dog, (2) that the dog was vicious, (3) that the defendant knew the dog was
vicious, and (4) that the defendant was negligent in keeping the dog. Flint, 608 N.E.2d at 812. The
focus at common law is whether the defendant knew the dog was vicious and kept the dog around
anyway. “[T]he gist of the action for injury by a dog known by its owner to be vicious is generally
said to be not negligence in the manner of keeping the dog, but for keeping it at all.” Id. at 813
(quotation marks omitted).
Here, plaintiffs assert a common-law claim against Lowe’s for the dog bite claiming that
Lowe’s “had knowledge of the said dog’s danger and viciousness[,]” and was “negligent in
keeping said dog and/or allowing the dog[] to remain at the premises where the incident happened
and/or failing to remove the hazard.” (Compl. ¶¶ 20–21.) However, as noted above, plaintiffs have
failed to plead any facts to support an inference that Lowe’s owned or harbored the dog that bit
6
Krystal. For this reason, plaintiffs’ common-law claim against Lowe’s for the dog is dismissed for
failure to state a claim upon which relief can be granted.
B. Krystal’s Claim of Premise Liability Against Lowe’s
Under Ohio law, to succeed on a negligence claim, a plaintiff must prove: (1) the existence
of a duty, (2) breach of that duty, (3) an injury that was proximately caused by defendant’s breach,
and (4) damages. Asad v. Continential Airlines, Inc., 328 F. Supp. 2d 772, 781 (N.D Ohio 2004)
(applying Ohio law). The existence of a duty in a negligence action is a question of law for the
Court to determine. Id. (citing Mussivand v. David, 544 N.E.2d 265, 270 (Ohio 1989)). A duty is
a legal obligation for one person to act for the benefit of another person due to the relationship
between them. Dryer v. Flower Hosp., 383 F. Supp. 2d 934, 942 (N.D. Ohio 2005).
Under Ohio law, a plaintiff’s status on a defendant’s premises determines the scope of the
legal duty owed (trespasser, licensee, social guest, or invitee). Pelland v. Wal-Mart Stores, Inc.,
282 F. Supp. 3d 1019, 1023 (N.D Ohio 2017) (citing Shump v. First Cont’l-Robinwood Assocs.,
644 N.E.2d 291, 294 (Ohio 1994)). Relevant here, a special relationship that gives rise to a duty
under Ohio tort law is the relationship between a landowner and a business invitee. As defined by
Ohio law, a business invitee is a person who is on the premises of another by invitation, express
or implied, for some purpose which is beneficial to the owner. Light v. Ohio Univ., 502 N.E.2d
611, 613 (Ohio 1986). Here, the parties do not dispute that Krystal was a business invitee at the
Store on the day of the incident. (Opp’n at 114; Reply at 121.) Therefore, the Court will analyze
Krystal’s negligence claim under business invitee caselaw.
Landowners owe business invitees on their premises a duty of “ordinary care.” Dryer, 383
F. Supp. 2d at 942. “Ordinary care” means that a landowner is required to maintain its premises in
a safe condition, eliminating any unreasonable risk of harm to visitors. Id. Under Ohio law, for a
7
business invitee to recover for an injury caused by a hazard on defendant’s premises, the plaintiff
must show: (1) that the defendant through its officers or employees was responsible for the hazard,
(2) that at least one of such persons had actual knowledge of the hazard and neglected to give
adequate notice of its presence or remove it promptly, (3) that such danger had existed for a
sufficient length of time to justify the inference that the failure to warn against it or remove it was
attributable to want of ordinary care. Johnson v. Wagner Provision Co., 49 N.E.2d 925, 928 (Ohio
1943).
However, under Ohio law, “[r]egardless of an entrant’s status, a landowner has no duty to
warn her of ‘open and obvious’ dangers and is thus not liable for any injuries resulting from such
dangers.” Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 724–25 (6th Cir. 2012) (citing
Armstrong v. Best Buy Co., 788 N.E.2d 1088, 1089–90 (Ohio 2003)). “A danger is open and
obvious if it is reasonably observable and thus would be seen by someone ‘acting with ordinary
care under the circumstances’; the plaintiff need not actually have seen it.” Id.at 725 (citing
Hissong v. Miller, 927 N.E.2d 1161, 1166 (Ohio Ct. App. 2010)). Further, “[i]n cases involving
an open and obvious danger, ‘[i]t is only where it is shown that the owner had superior knowledge
of the particular danger which caused the injury that liability attaches, because in such a case the
invitee may not reasonably be expected to protect himself from a risk he cannot fully appreciate.’”
Smrtka v. Boote, 88 N.E.3d 465, 470 (Ohio Ct. App. 2017) (alternation in original). “The open and
obvious doctrine is a complete bar to any negligence claim.” Id. at 470 (citing Armstrong, 788
N.E.2d at 1090).
While district courts should be reluctant to dismiss complaints based on affirmative
defenses at the pleading stage and before any discovery has been conducted, Pfeil v. State St. Bank
& Tr. Co., 671 F.3d 585, 599 (6th Cir. 2012) (“Courts generally cannot grant motions to dismiss
8
on the basis of an affirmative defense unless the plaintiff has anticipated the defense and explicitly
addressed it in the pleadings.”), the open and obvious danger doctrine is not an affirmative defense
under Ohio law. Hissong, 927 N.E.2d at 1165 (citing Armstrong, 788 N.E.2d at 1090–91). Instead,
the open and obvious danger doctrine concerns the threshold question of whether a duty exists. Id.
At the threshold, a landowner owes no duty for open and obvious dangers on their land. Id.
However, “‘[w]hether a danger is open-and-obvious requires an extremely fact-specific
inquiry.’” Stanfield v. Amvets Post No. 88, No. 06CA35, 2007 WL 1174445, at *2 (Ohio Ct. App.
Apr. 20, 2007) (quoting Henry v. Dollar Gen. Store, No. 2002-CV-47, 2003 WL 139773, at * 4
(Ohio Ct. App. Jan. 17, 2003)). “Consequently, comparing the facts of a given case with other
cases is of limited value. Henry, 2003 WL 139773, at *3 (citing Miller v. Beer Barrel Saloon, No.
90-OT-050, 1991 WL 87098, at *2 (Ohio Ct. App. May 24, 2991) (“The determination of the
existence and obviousness of a danger alleged to exist on a premises requires a review of the facts
of a particular case.”)).
Here, Krystal alleges that Lowe’s is negligent on a premise liability basis because it (1)
allowed the dog at issue to be present in the Store and (2) failed to require proper restraints upon
the dog. (Compl. ¶ 30.) In response, Lowe’s correctly points out that, under Ohio law, allowing
dogs to be present on a commercial premise is not in and of itself a negligent action. See Smrtka,
88 N.E.3d at 469–71. But, Lowe’s would have this Court believe that Smrtka dictates this case and
thus the dog at issue must be considered an open and obvious danger. This is not so—Smrtka is
easily distinguishable from the present case.
To begin, this Court notes that Smrtka was decided at the motion for summary judgment
stage. This is important because the open and obvious danger doctrine is an extremely fact-specific
inquiry. See Stanfield, 2007 WL 1174445, at *2; Miller, 1991 WL 87098, at *2. Further, in Smrtka,
9
the court found the dog was an open and obvious danger, in part, because the plaintiff admitted to
having knowledge of the dog’s presence in the defendant doctor’s office on days prior to the day
the dog bite occurred. Smrtka, 88 N.E.3d at 471. Further, the plaintiff admitted to seeing the dog
on the day of the bite, having knowledge that all dogs react differently, and, nevertheless,
approaching the dog willingly. Id. Also, there was no evidence that the defendant doctor had
superior knowledge concerning the dog. Id.
Here, unlike Smrtka, there are no allegations that Krystal—despite being a purported
“regular customer” (Compl. ¶ 6)—had any knowledge prior to day of the dog bite that this dog, or
any dogs, were present in the Store. Further, Krystal does not allege in her complaint that she saw
the dog on the day of the bite, before the bite occurred. Nor, does Krystal allege in her complaint
that she ever approached the dog. As such, the present case is distinguishable from Smrtka on key
facts that led that court to find the dog was an open and obvious danger.
Given this, the Court does not find it appropriate to dismiss Krystal’s premise liability
claim against Lowe’s based on the open and obvious danger doctrine at this phase of the litigation.6
Based on Krystal’s allegations in her well-pleaded complaint that Lowe’s allowed dogs in the Store
and failed to require proper restraints, Lowe’s motion to dismiss for failure to state a claim as it
pertains to Krystal’s premise liability claim is denied.
C. Krystal’s Claim of “Bad Faith” Against Lowe’s
Lastly, Krystal brings a claim captioned “bad faith” against Lowe’s. Under Ohio law, the
relationship between an insurer and its insured creates a duty of the insurer to act in good faith in
handling and paying claims of its insured. Hoskins v. Aetna Life Ins. Co, 452 N.E.2d 1315, 1316,
6
To be sure, this Court did not find a single case applying Ohio law that applied the open and obvious danger doctrine
to dismiss a premise liability cause of action by a motion to dismiss, instead of a motion for summary judgment. Cf.
Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1147 (Ohio 2002) (finding even though, generally, “the dangers
associated with firearms are open and obvious,” plaintiff had alleged sufficient facts to overcome a motion to dismiss).
10
syllabus (Ohio 1983). A breach of this duty gives rise to a tortious “bad faith” claim against the
insurer. Id. However, Ohio law does not recognize a “bad faith” claim outside of the insurer–
insured relationship. See Gator Dev. Corp. v. VHH, Ltd., No. C-080193, 2009 WL 1027584, at *5
(Ohio Ct. App. Apr. 17, 2009) (“Ohio . . . does not recognize the bad-faith breach of a contract as
a tort claim, outside the context of an insurance dispute.”). To be sure, plaintiffs provide this Court
with no case law suggesting otherwise.
Plaintiffs have failed to plead any facts suggesting that any insurer–insured relationship
exists between Lowe’s and the plaintiffs. As such, this Court finds that a “bad faith” claim is not
an actionable cause in this controversary. Plaintiffs’ claim for “bad faith” against Lowe’s must be
dismissed for failure to state a claim upon which relief can be granted.
D. Daniel’s Derivative Loss of Consortium Claim Against Lowe’s
Under Ohio law, “loss of consortium claims are derivative actions which depend on the
existence of a primary cause of action.” Loomis v. Medtronic, Inc., No. 1:04CV0499, 2005 WL
1828763, at *6 (N.D. Ohio Aug. 1, 2005) (citing Gearing v. Nationwide Ins. Co., 665 N.E.2d 1115,
1120 (Ohio 1996)). Because Krystal’s premise liability claim against Lowe’s survives the motion
to dismiss, Daniel’s derivative loss of consortium claim against Lowe’s also survives.
IV.
CONCLUSION
For the reasons set forth herein, Lowe’s motion to dismiss is GRANTED as it pertains to
Krystal’s claims against Lowe’s for strict liability, Ohio’s common law liability; and bad faith.
Lowe’s motion to dismiss is DENIED as it pertains to Krystal’s premise liability claim and
Daniel’s derivative loss of consortium claim.
IT IS SO ORDERED.
Dated: March 11, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?