The Michigan Court of Appeals recently reversed a trial court’s denial of summary disposition for a defendant dog owner, reasoning the defendant did not breach a duty of care owed to the plaintiff Fed Ex employee.
In August 2012, the defendant was reading in his back yard with his dog, who was leashed on a cable that was anchored to the garage. The dog, who was part chow and part pit bull, had a tendency to bark at strangers, but she had never bitten or attacked anyone. The defendant had never received any complaints about her from his neighbors, nor had animal control been called regarding her.
Later that day, the plaintiff, a Fed Ex employee, arrived to deliver a package. Approaching the defendant’s house with the package, she did not see the sidewalk leading to his front door, so she walked up the driveway on the side of the house.
She set the package down and knocked on the side door. In response, the dog jumped up and ran around the corner. As the plaintiff maneuvered around a semi-enclosed railing, she saw the dog approaching. She described the dog as “vicious,” explaining that the dog was “barking, snarling, just charging at me.” While she back-pedaled down the driveway to escape, she fell backwards and injured herself, despite never being touched by the dog. After she fell, she noticed that the dog was attached to a cable and could not reach her.
In May 2014, the plaintiff filed a complaint against the defendant for negligence. The defendant moved for summary disposition on the negligence count, reasoning that Michigan law does not impose a duty on a dog owner to maintain constant control of their animal, absent a defendant’s knowledge of extremely dangerous characteristics of that dog.
The plaintiff argued that the defendant was not entitled to summary disposition because he had a duty to exercise control over the dog if it would reasonably be expected that an injury could occur. She also claimed that he had failed to undertake any precautions to control the dog and failed to post a sign warning visitors about the presence of the dog. Finding “multiple fact questions,” the trial court denied the defendant’s motion for summary judgment.
On appeal, the defendant challenged the trial court’s denial of his motion. The appeals court agreed with the defendant, reasoning that he owed no duty to the plaintiff to exercise additional control over the dog because it was not reasonably foreseeable that the dog could harm the plaintiff.
The appeals court began by explaining that in a negligence action based on a failure to control an animal, the court must determine whether a duty exists by considering the normal characteristics of the animal, whether a defendant has knowledge of any dangerous propensities unique to the particular animal, and whether a defendant is aware that the animal is in a situation in which it would reasonably be expected that an injury could occur. If a duty does exist, the amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time. However, dogs are generally regarded as so unlikely to do substantial harm that their possessors have no duty to keep them under constant control. Therefore, a mere failure to keep a dog under constant control does not constitute a breach of the duty of care.
Viewing the evidence in the light most favorable to the plaintiff, the court held the record did not demonstrate that the defendant had knowledge of any dangerous propensities unique to the dog. The evidence demonstrated merely that he knew that the dog barked at strangers, and nothing more. Therefore, the defendant could only be held liable for negligence if he was aware that the dog was in a situation in which it would be reasonably expected that an injury could occur. There was no evidence in the record that any harm was foreseeable. Therefore, the defendant did not owe the plaintiff a duty to do more than what he did.
The court further held that even if there were a duty, the defendant’s tethering of the dog such that she could not access the side or front porch fulfilled that duty. With the dog unable to reach the side porch, it was not foreseeable that someone interacting with the porch would be harmed by the dog. Thus, the court reversed and remanded to enter summary judgment in favor of the defendant.
The dog bite attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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