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Case Information
Filed
2024-06-25
Status
CLOSED
Type
Civil Austintown
Docket
48 entries
Disposition
judgment
Parties
Plaintiff
Green, Kevin|Green, Karen
Defendant
Lindsay, Shaun M|Lindsay, Nicole
Lawyers
Docket Entries
- $0.00
- ADDITIONAL DEFENDANTS Receipt: 433731 Date: 06/25/2024
- Issue Date: 06/25/2024 Service: SUMMONS ISSUED Method: (A) CERTIFIED MAIL Cost Per: $0.00 LINDSAY, SHAUN M 549 PURDUE AVENUE YOUNGSTOWN, OH 44515 Tracking No: 941472669904222586698
- Issue Date: 06/25/2024 Service: SUMMONS ISSUED Method: (A) CERTIFIED MAIL Cost Per: $0.00 LINDSAY, NICOLE 549 PURDUE AVENUE YOUNGSTOWN, OH 44515 Tracking No: 941472669904222586699
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 06/25/2024 Service : SUMMONS ISSUED Served : 07/05/2024 Return : 07/08/2024 On : LINDSAY, NICOLE Signed By : NICOLE LINDSAY Reason : (A) SUCCESSFUL SERVICE Comment : Tracking #: 941472669904222586699
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 06/25/2024 Service : SUMMONS ISSUED Served : 07/05/2024 Return : 07/08/2024 On : LINDSAY, SHAUN M Signed By : NICOLE LINDSAY Reason : (A) SUCCESSFUL SERVICE Comment : Tracking #: 941472669904222586698
- ANSWER OF DEFENDANTS FILED Attorney: GIANNINI, MATTHEW (1522)
- HEARING SCHEDULED-CONTINUED BY THE COURT Event: CIVIL PRE TRIAL Date: 09/27/2024 Time: 9:45 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: CONTINUED BY JUDGE
- NOTICE OF CIVIL PRE TRIAL SENT TO ATTORNEYS BY REGULAR MAIL
- HEARING SCHEDULED Event: CIVIL PRE TRIAL Date: 10/11/2024 Time: 9:45 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: CONTINUED
- NOTICE OF PHONE PRE TRIAL AND CANCELLED HEARING DATE SENT TO ATTY MATTHEW GIANNINI AND ATTY CHARLES E DUNLAP
- MOTION FOR CONTINUANCE FILED BY Attorney: DUNLAP, CHARLES E. (12827)
- ENTRY: ON MOTION OF PLAINTIFF'S COUNSEL, FILED REQUESTING THE COURT TO CONTINUE THE PRE TRIAL SCHEDULED FOR OCTOBER 11, 2024. SAID MOTION IS HEREBY SUSTAINED. THIS MATTER IS HEREBEY CONTINUED FOR 21 DAYS TO NEXT AVAILABLE DATE OF NOVEMBER 1, 2024 AT 10:00 AM. /S/DJD /S/JUDGE JOE SCHIAVONI
- HEARING SCHEDULED Event: CIVIL PRE TRIAL Date: 11/01/2024 Time: 10:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- ENTRY OF 8/12/24 AND NOTICE OF PHONE PRE TRIAL SENT TO ATTY CHARLES E DUNLAP AND ATTY MATATHEW GIANNINI
- ENTRY: PRE TRIAL HELD ON THE 1ST DAY OF NOVEMBER 2024. COUNSEL CHARLES E DUNLAP FOR PLAINTIFF/PLAINTIFF PRESENT. COUNSEL MATTHEW GIANNINI FOR DEFENDANT/DEFENDANT PRESENT. DISCOVERY TO BE COMPLETED IN 60 DAYS. DISPOSITIVE MOTIONS, IF ANY, FILED IN 90 DAYS. SET BENCH TRIAL FOR 120 DAYS /S/ MAGISTRATE DONALD J DESANTO
- HEARING SCHEDULED Event: CIVIL TRIAL Date: 03/07/2025 Time: 11:30 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- NOTICE OF CIVIL TRIAL SENT TO ATTORNEYS BY REGULAR MAIL
- MAGISTRATES DECISION FILED. The Proceedings This matter came on for trial on March 7, 2025 on the plaintiff's complaint filed June 21, 2024. Present Were The plaintiffs appeared with counsel, Attorney Charles E. Dunlap. The defendant, Shaun M. Linsay appeared with counsel, Attorney Matthew C. Giannini. Findings of Fact and Conclusions of Law 1. Initially called to testify was the Plaintiff, Karen Green. Ms. Green stated that she has resided at her residence, 5547 Colgate Dr., Youngstown, Ohio 44515 for thirty years. She stated that she has two dogs named Buddy and Dudley. Her testimony then referenced an incident occurring on May 29, 2023. Ms. Green indicated that the backyard of her residence is fenced in. On the day in question her dogs were both in her backyard. She indicated that her dogs ran towards her fence upon seeing two pit bulls, later established as dogs belonging to the defendants, coming to her fence. Ms. Green further stated that she ran to the fence and fell in the process of trying to separate the dogs. She indicated that one of the pit bulls had broken through the fence and had Buddy's head in his mouth. She stated that she grabbed Dudley out of the way and threw a chair towards the fence. She further stated that she was able to separate the dogs. By her testimony neither of her dogs left her yard. She indicated that both of the pit bulls were on her property. Later testimony would reveal that there is approximately 18 inches between her property line and her fence. 2. The plaintiff was then shown Plaintiffs' Exhibit 6 consisting of 9 pages of various photographs. She indicated that Plaintiffs' Exhibit 6, page 1, photograph A, was a picture of her dog, Buddy. Plaintiffs' Exhibit 6, page 3, photograph B, was a picture of the front of her home. Plaintiffs' Exhibit 6, page 4, photographs B, C and D reflect her fence and the damage where the rods had been separated. Plaintiffs' Exhibit 6, page 5, photograph D was a picture of one of the pit bulls. Also submitted as additional photos of the pit bulls were the pictures on Plaintiffs' Exhibit 6, page 6, photographs C and D. Lastly referenced was Plaintiffs' Exhibit 6. Page 7, photographs C and D depicting an unnamed person who was on the other side of her fence with the pit bulls. 3. Next submitted by the plaintiff was Plaintiffs' Exhibit 1, the medical records of Mercy Health for Ms. Green with an admission date of May 29, 2023. Plaintiff indicated that the notation on page 11 of such records referencing a time of 20:58:07 and describing a trip and fall in a parking lot was not a reference to injuries she sustained. She indicated that the description of injuries on page 13 of such records referencing a time of 21:07:21 was accurate. She further indicated that the reference on page 18 of such records bearing a time of 22:24 and noting Kinder 1 Fall Risk did not apply to her. Ms. Green was also shown Plaintiffs' Exhibit 2, the billing statement from Mercy Health in the total amount of $4,126.70. Of such amount insurance paid $2,187.90. The plaintiff was also shown Plaintiffs' Exhibit 9 which reflects the Mercy Health bill, the amount insurance paid and the balance still due of $393.10. She stated that she has received no notice from her insurance carrier of a claim for subrogation. 4. Ms. Green indicated that she experiences pain in her knee when she walks a lot. She further indicated that she fears for the safety of the grandchildren in the backyard. She also stated that she fears for the safety of her dogs based upon the May 29, 2023 incident. 5. On cross examination Ms. Green indicated that she was born on March 28, 1963. She stated that she was unaware of how many years the defendants had lived in her neighborhood. She testified that there were four incidents with the defendants' dogs but acknowledged that she did not have verification of all such incidents. Her attention was directed to Plaintiffs' Exhibit 6. She acknowledged that she had no pictures of the fence prior to the subject incident. She further stated that the fence is aluminum but has a plastic netting woven in between the rods. On the date in question she acknowledged that her dogs were not restrained with leashes. She stated that initially she only heard her two dogs barking. When the incident began she was initially seated upon a swing. She stated that she did throw a chair towards the dogs but that the chair landed in the yard, not striking the fence. The plaintiff marked Plaintiffs' Exhibit 6, page 4, photograph C with an X where the chair landed in the yard. Ms. Green indicated that she has not yet paid the remaining balance owing to Mercy Health. She further stated that Plaintiffs' Exhibit 5 is for injuries sustained by Dudley however she was not a witness to such incident. Additionally, Plaintiffs' Exhibits 7 and 8 reference veterinarian records for Dudley, again for the incident of January 9, 2024 but not witnessed by Ms. Green. 6. On redirect Ms. Green stated that there had been no damages to her fence before the incident of May 29, 2023. She indicated that during such incident the pit bull attacking Dudley never penetrated her fence. She stated however that the pit bull attacking Buddy did have its head through the fence. 7. Next called to testify was the plaintiff, Kevin Green. He referenced a January 8, 2024 incident wherein he was present. He noted that both of his dogs were outside in the backyard. By his testimony one of the defendants' pit bulls attacked his dog, Dudley, through the bowed fence. He indicated that the fence had not been bowed before, presumably before the incident of May 29, 2023. He maintained that the shoulder of the defendants' pit bull had penetrated through the fence. Mr. Green was shown Plaintiffs' Exhibit 4 which he identified as a picture of his dog, Dudley. He stated that Plaintiffs' Exhibit 7 are the veterinarian records regarding the incident of January 9, 2024. Plaintiffs' Exhibit 8 reflects the charges incurred as a result of such incident of January 9, 2024. Such charges appear to be in the total amount of $270.84 however listed on Plaintiffs' Exhibit 9 as $272.04. Lastly submitted to Mr. Green was Plaintiffs' Exhibit 3, an estimate from Canfield Fence Co. in the amount of $284.00. 8. On cross-examination Mr. Green indicated that he was inside his residence when he heard some commotion. He stated that it was less than a second before he exited his house. He agreed that he did not observe what had occurred initially. On redirect examination Mr. Green indicated that Dudley had sustained four puncture wounds. At that time plaintiff rested. Plaintiffs' Exhibits 2 through 9 were accepted, there be no objection to same. An objection was lodged to Plaintiffs' Exhibit 1 and the magistrate indicated that a decision on its admissibility would be taken under advisement. Same will be addressed below. 9. Next called to testify was the defendant, Shaun Lindsy. Mr. Lindsay indicated that he resides at 549 Perdue Ave., Youngstown, Ohio 44515. He stated that there is one property in between his home and the plaintiffs' residence. Mr. Lindsay indicated that he was not present at the time of the May 29, 2023 incident as he was out of town. He testified that he owns 2 dogs. One dog named Stanley, a pit bull, weighs approximately 62 pounds. The other dog is named Lexie, a blue Staffordshire terrier and weighs approximately 54 pounds. When shown Plaintiffs' Exhibit 7, the veterinary records for Dudley he noted that Dudley weighs 43 pounds. With reference to the January 8, 2024 incident Mr. Lindsay indicated that the leash for Stanley came loose. He maintained that Mr. Green was banging on the fence and that there was no contact between the dogs. On cross-examination Mr. Lindsay maintained that the plaintiff fabricated the incident. He agreed that the plaintiffs' dogs never went outside of their fenced backyard. He lastly denied that his dog, Stanley, entered upon the plaintiff's land. 10. The magistrate will initially address the issue regarding the admissibility of Plaintiffs' Exhibit 1. Though the defendants challenged such exhibit on the grounds of authenticity the magistrate finds the more appropriate initial consideration would have been a challenge on the basis of hearsay. As this is not a small claims action but rather on the courts civil docket the rules of evidence apply. It is clear that the medical records were being offered to prove the truth of the matter asserted and as per Evid. R. 801(C) constitute inadmissible hearsay unless admitted pursuant to an exception. There is no doubt that the medical records could have been submitted as an exception to hearsay as a business record as per Evid. R. 803(6). However, same would still have required authentication by the business records custodian. There was no submission of the records as an exception to the hearsay rule with proper authentication and accordingly same will not be accepted. 11. The magistrate now turns to consideration of the responsibility of a dog owner regarding injuries or damages caused by the dog. R.C. 955.22 provides that: . . . (C) Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following: (1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or secure enclosure to prevent escape; (2) Keep the dog under the reasonable control of some person. . . . The magistrate finds that the defendants, whether individually or by virtue of their designated dogs' caretakers, failed to keep their dogs under control with reference to both the incident of May 29, 2023 as well as the incident of January 8, 2024. The magistrate finds that the defendants are therefore liable for all damages or injuries proximately resulting therefrom. 12. Plaintiff is entitled to recover her reasonable medical expenses. The Ohio Supreme Court held in Robinson v. Bates, 112 Ohio St. 3d 17 (2006) that: . . . To avoid the creation of separate categories of plaintiffs based on individual insurance coverage, we decline to adopt a categorical rule. Because different insurance arrangements exist, the fairest approach is to make the defendant liable for the reasonable value of plaintiff's medical treatment. Due to the realities of today's insurance and reimbursement system, in any given case, that determination is not necessarily the amount of the original bill or the amount paid. Instead, the reasonable value of medical services is a matter for the jury to determine from all relevant evidence. Both the original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of charges rendered for medical and hospital care. { 18} The jury may decide that the reasonable value of medical care is the amount originally billed, the amount the medical provider accepted as payment, or some amount in between. Any difference between the original amount of a medical bill and the amount accepted as the bill's full payment is not a "benefit" under the collateral-source rule because it is not a payment, but both the original bill and the amount accepted are evidence relevant to the reasonable value of medical expenses. . . . See also, Forman v. Kreps, 2016-Ohio-1604 (Court of Appeals, 7th Appellate District 2016). With such caselaw being considered as guidance the magistrate finds that the plaintiffs have sustained medical expenses in the amount of $4,126.70. In addition, plaintiffs have sustained veterinarian charges regarding the incident of January 8, 2024 in the amount of $270.84. An additional amount of $2,000.00 is awarded for pain and suffering. Accordingly, plaintiffs' total damages are found to be $6,397.54. Decision 1. Judgment for the plaintiffs against the defendants, Shaun M. Lindsay and Nicole Lindsay, jointly and severally, in the amount of $6,397.54 plus statutory interest and costs. /S/DJD/MKD Pursuant to Civil Rule 53(D)(3)(a)(iii) a party shall not assign as error the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civil Rule 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civil Rule 53(D)(3)(b).
- OBJECTION TO THE MAGISTRATE'S DECISION FILED BY Attorney: GIANNINI, MATTHEW (1522). MKD
- HEARING SCHEDULED Event: OBJECTION TO THE MAGISTRATE'S DECISION Date: 04/23/2025 Time: 11:00 am Judge: HUNTER, SCOTT D Location: COUNTY COURT # 4 Result: CONTINUED
- COMPACT DISC OF AUDIO OF CIVIL TRIAL. CALLED TRISHA AND ADVISED IT IS READY Receipt: 448647 Date: 04/11/2025
- MOTION FOR CONTINUANCE FILED . :: :: On behalf of Plaintiff: KAREN GREEN, KEVIN GREEN :: Filed By: CHARLES E DUNLAP
- JECC> SEE ATTACHED IMAGE JUDGMENT ENTRY :: :: On behalf of : The Court :: Filed By: SONYA HENNESSY
- HEARING SCHEDULED Event: OBJECTION TO THE MAGISTRATE'S DECISION Date: 05/07/2025 Time: 11:00 am Judge: HUNTER, SCOTT D Location: COUNTY COURT # 4 Result: CONTINUED
- ENTRY OF 4/7/25 AND NOTICE OF OBJECTION HEARING SENT TO ATTY CHARLES E DUNLAP AND ATTY MATTHEW GIANNINI
- MISC: TRANSCRIPT OF PROCEEDINGS OF 03/07/2025 :: :: On behalf of Defendant: SHAUN M LINDSAY, NICOLE LINDSAY :: Filed By: MATTHEW C. GIANNINI
- MOTION FOR CONTINUANCE FILED Attorney: DUNLAP, CHARLES E. (12827)
- JUDGMENT ENTRY ON MOTION OF PLAINTIFFS' COUNSEL, FILED THIS 7TH DAY OF MAY, 2025, REQUESTING THE COURT TO CONTINUE THE OBJECTION HEARING SCHEDULED FOR WEDNESDAY, MAY 7, 2025 AT 11 A.M., SAID MOTION IS HEREBY SUSTAINED. THIS MATTER IS HEREBY CONTINUED TO THE NEXT AVAILABLE DATE OF WEDNESDAY, 2025, AT MAY 21ST 11:00AM. IT IS SO ORDERED. JUDGE SCOTT D. HUNTER
- HEARING SCHEDULED Event: OBJECTION TO THE MAGISTRATE'S DECISION Date: 05/21/2025 Time: 11:00 am Judge: HUNTER, SCOTT D Location: COUNTY COURT # 4
- ENTRY OF 5/7/25 AND NOTICE OF OBJECTION HEARING SENT TO ATTY CHARLES E DUNLAP AND ATTY MATTHEW C GIANNINI
- JUDGMENT ENTRY The attached decision was filed by the Magistrate of this Court on March 17th, 2025. The Court held a hearing on Plaintiff's objections on May 21st, 2025. Counsel for both parties present. Such objections are overruled. The Court has conducted an independent review of the Magistrate's Decision and finds that such Decision is well supported and there is no error or defect on the face of such Decision. Accordingly, such attached Magistrate's Decision is adopted in its entirety, pursuant to Civil Rule 53(D)(4), as a permanent Order of the Court. IT IS SO ORDERED. JUDGE SCOTT D. HUNTER
- ENTRY OF 5/22/25 AND DECISION OF 3/17/25 SENT TO ATTY CHARLES E DUNLAP AND ATTY MATTHEW GIANNINI
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