Plaintiffs appealed an order granting summary disposition in favor of the defendant in a Michigan premises liability action involving an attack on the plaintiffs’ dog, Axle. The Michigan Court of Appeals affirmed.On May 13, 2015, the plaintiff brought Axle with her out into her backyard to do some gardening. Soon afterward, she left Axle out and went inside to retrieve some gloves. During her brief absence, the plaintiff heard barking at the back fence of her yard. She ran outside and saw Axle on the opposite side of her fence and two pit bulls “on top of him.” The plaintiff observed three or four men in the other yard, one of whom had a shovel and was attempting to beat the pit bulls off of Axle. The plaintiff also grabbed a shovel and cut her hand on the fence as she reached over to help. Eventually, they succeeded in stopping the attack. The plaintiff called Axle’s co-owner, and the two took Axle to a veterinary clinic for emergency care. Axle required specialty care about a week after the incident. Combined, the veterinary bills amounted to around $8,000.
Later, it was discovered that the two dogs belonged to one of several tenants living in the house behind the plaintiff’s backyard. The house where the tenant, his dogs, and his co-tenants resided was owned by their landlord, the defendant.
No one claims to have seen Axle enter the yard containing the pit bulls. The plaintiffs (Axle’s co-owners) suggested that the kinds of injuries Axle sustained to his neck and head on one side, and the markings on that same side, indicate that Axle was grabbed by the pit bulls and pulled over the fence before he was mauled. Although the landlord’s property was bounded by a four-foot-tall cyclone fence, the plaintiffs claimed that a two-foot-tall pile of leaves had collected in the corner of the yard, giving the other dogs a boost to the top.
The plaintiffs brought a three-count complaint against the landlord and tenant, alleging (1) strict liability under MCL 287.351 against the defendant dog owners, (2) negligence as to the defendant dog owners, and (3) negligence as to the defendant landlord. The landlord subsequently moved for summary disposition of the plaintiffs’ negligence claim under MCR 2.116(C)(10), conceding that the facts of the incident were undisputed but arguing that he had no duty to protect the plaintiffs and was therefore entitled to judgment as a matter of law. After a hearing on both motions, the trial court granted the motion for summary disposition.
On appeal, the plaintiffs argued that the trial court erred when it granted the motion for summary disposition under MCR 2.116(C)(10) because a genuine dispute of material fact remained, and the trial court improperly shifted the burden of proof to the plaintiffs before granting the motion. The appeals court disagreed.
To establish a prima facie case of negligence, a plaintiff must prove four elements: 1) duty, 2) a breach of that duty, 3) causation, and 4) damages. The plaintiffs argued that the landlord had a duty to (1) investigate his property, (2) maintain the property and the fence around it, (3) abate nuisances, (4) warn of dangerous conditions on the property, and (5) take reasonable measures to avoid foreseeable harm. However, the plaintiffs failed to cite any authority either to support that a Michigan landlord lacking any sort of control over leased property is burdened with such responsibility or to support the claim that this landlord, in particular, owed any such duty to the plaintiffs. “A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim.”
The plaintiffs suggested that since they set forth a variety of documentary and other evidence, and the landlord relied only on his own statements of denial, the trial court must have failed to properly consider all of the evidence. The court could not find any indication in the record that the trial court failed to consider all of the plaintiffs’ evidence. It is not the amount of evidence set forth by either party that determines the outcome of a summary disposition motion. It is whether the evidence properly establishes a genuine dispute of material fact to preclude the court’s rendering a judgment in favor of one party or the other. Here, since the existence of a duty was the crucial issue, the plaintiffs were required to set forth evidence to show that the landlord knew of the dogs’ presence on his tenants’ property and that he knew that the dogs were vicious. The plaintiffs simply failed to meet their burden. Summary disposition was therefore appropriate.
The dog bite attorneys at the Neumann Law Group represent 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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