Not Just Another "Dog Bite" Case: The Impact of Public Policy Concerns on the Defense of Dog Bite Cases
Defending "just another dog bite case"? Think again. There is no such thing following the supreme court's decision in Fandrey v. American Family Mut. Ins. Co. issued in June. In a unanimous decision, the court held that the traditional considerations of public policy can be used to limit strict liability under § 174.02, Stats., the "dog bite" statute. The court upheld summary judgment dismissal of the minor plaintiff's claim because she was inside the dog owners' home without their consent while they were away.
The facts of the case were undisputed. Three year old MacKenzie Fandrey and her mother, Michelle Egner, were delivering Christmas cookies to Michelle's friends, Nichole and Matt Beliunas. Michelle and Nichole had been friends for many years. They visited at one or the other's homes about once a month. These social visits were generally arranged in advance. Significantly, however, there was no practice between them entering into the other's house when no one was at home.
On the day of the accident, Michelle had not notified Nichole that she and MacKenzie would be visiting. The Beliunases were away from home at a movie. When Michelle and MacKenzie arrived, Michelle knocked on the door and received no response. The door had been left unlocked and Michelle then opened the door and yelled into the house. She assumed that no one was home. She and MacKenzie went inside the house to the kitchen table that was located near the door.
Nichole owned a large dog named Molly. Michelle was familiar with Molly and was generally aware that the dog was present inside the house when she and MacKenzie entered. Michelle testified that she did not have permission from the Beliunases to enter their home and also agreed that the Beliunases were not aware that she was coming over.
Once inside the home, Michelle set MacKenzie down on a chair at the kitchen table and began writing a note. Unknown to Michelle, MacKenzie got down from the chair and walked into the living room where she was bitten by Molly.Upon initial review of this case, it was apparent that Michelle and MacKenzie were essentially trespassers inside the Beliunases' house at the time of the bite. As a defense to premises liability, a trespasser is defined as "one who goes upon premises owned, occupied or possessed by another, without consent, express or implied, extended by such owner, occupant or possessor..."
There is no mental element involved in a determination as to who is a trespasser and young children can be trespassers, even though they are too young to be contributorily negligent. Consequently, if MacKenzie was a trespasser, her status as such would have provided the Beliunases with a defense to a normal premises liability claim. It logically followed that this same defense should also protect them from strict liability under § 174.02, Stats.
Since the 1987 court of appeals decision in Becker v. State Farm Insurance Company, most attorneys have assumed that the six traditional public policy considerations could be used to preclude the strict liability imposed by § 174.02, in appropriate circumstances. Specifically, the Becker court recognized that harsh results could occur from a strict application of the dog bite statute and posited that these harsh results were tempered by considerations of public policy, comparative negligence, and causation. In fact, the court of appeals discussed each of the policy factors, but found that none of them applied in that case.The applicability of public policy considerations to § 174.02 was reinforced by the court of appeals inAlwin v. State Farm Fire & Casualty Company. In Alwin, the court of appeals actually applied public policy to preclude liability under § 174.02, where the plaintiff tripped over a dog that had fallen asleep behind the plaintiff's chair at the dinner table.
After further review of the case law, it seemed appropriate that in Fandrey, rather than relying on "trespass" as a defense, the application of the traditional considerations of public policy would be the appropriate way to preclude MacKenzie's strict liability claim against the Beliunases. Accordingly, we argued that her presence in the house without express or implied permission should bar the imposition of strict liability on public policy grounds. The trial court agreed, finding that three of the policy factors applied - the injury was too wholly out of proportion to the culpability of the homeowners; allowance of recovery would place too unreasonable of a burden on the homeowners; and allowance of recovery would enter a field that had no sensible or just stopping point.
MacKenzie appealed to the District Three Court of Appeals. Her main argument was that strict liability under § 174.02 reflected the public policy of the state as set by the legislature. Therefore, it was impermissible for the trial court to examine the considerations of public policy to temper that strict liability. Any such policy analysis was solely the function of the legislature. Surprisingly, and notwithstanding its holdings in Becker and Alwin, the court of appeals certified the case to the supreme court and asked that the court determine whether it was permissible for the courts to use the traditional public policy considerations to limit liability under § 174.02, and if so, whether those factors were properly applied in this case.
The supreme court rejected the plaintiff's contention that public policy factors could not be applied. The court distinguished MacKenzie's use of the term "public class=Section3>policy" in a broader political sense from the use of public policy considerations in tort law to limit liability on a case-by-case basis.The court reasoned that § 174.02 was a codified tort action, but a tort action nonetheless. The statute provides for strict liability for the owner of a dog that causes injury, thus eliminating the need for proving negligence. However, the other tort elements of causation and damages were still necessary under the statute.
The court found support for this proposition from the the wording of § 174.02, which specifically required that a dog "cause" the injuries of the plaintiff. By using the term "cause", the legislature was presumed to know that "cause" consists of the factual cause-in-fact (substantial factor) to be determined by a jury and also the legal sufficiency of that cause that was the province of the court. It is this latter inquiry where the traditional public policy considerations are used.
The court also found it persuasive that the court of appeals had previously indicated that public policy factors could be used to temper the harsh effects of the dog bite statute. Since the analysis was first used in Becker in 1987 and then applied by the court in 2000 in Alwin, the legislature had done nothing to indicate that the courts could not apply the policy factors.
After concluding that public policy could be applied to § 174.02, the court determined that the three considerations applied by the trial court were appropriate and that summary judgment was properly granted. The court found that the strongest policy consideration was that to allow liability in this case, where the plaintiff entered the dog owners' home without express or implied permission, would enter a field that had no sensible or just stopping point. If liability were permitted in this case, the door would be open to imposing liability on a homeowner when a burglar was injured by a dog.Although the facts of Fandrey are somewhat unique, there are several points made by the decision that have significance when defending a "dog bite" case. First, and most obvious, is the affirmation that public policy considerations can be utilized in a strict liability dog bite case. While defense counsel have assumed that to be the case since Becker, there have been some lingering questions given the language in Meunier v. Ogurek. However, the supreme court has now eliminated any doubt that the public policy factors can be applied on a case-by-case basis to temper the harsh effects of the statute.
Another significant point in Fandrey is the court’s underlying analysis affirming summary judgment. That can be summarized as: when an individual is injured by a dog that is kept inside the dog owner's house, and the individual is inside the premises without the knowledge or consent of the owner, then public policy considerations will bar liability under the dog bite statute. The essential facts that were relevant to the application of public policy factors were that the plaintiff did not have express permission to enter the home and there were no facts that supported implied permission. Thus, in cases where the injured party is essentially a trespasser inside the dwelling of the dog owner, Fandrey should be controlling precedent and such a claim should be barred.
Just how far this holding can be extended remains to be seen. A potential extension of the decision would be a situation where a trespasser is injured by a dog kept outside and chained up or in a kennel. One of the keys to Fandrey was the fact that the dog was securely inside the home. In Fandrey, the door was unlocked and there was a question raised at oral argument whether that should make a difference in exploring the public policy considerations. Thus, if the dog is outside the dwelling, it is possible that public policy would not prevent liability, even in the case of a trespasser. In that scenario, however, if the claimant is seven years old or older, the lack of consent to be on the property would likely be a factor in considering the injured person's contributory negligence. Another significant point to Fandrey is its holding, when considered in combination with Alwin , the only other decision where public policy considerations have actually been applied to limit liability under § 174.02. In Alwin, the court of appeals concluded its decision by stating that to impose liability in the case of the sleeping dog would "effectively result in a pure penalty for dog ownership." The trial court in Fandrey used Alwin's language and found that strict liability would result in a pure penalty for dog ownership. The supreme court found this statement to be synonymous with the policy consideration that allowing recovery would place too unreasonable a burden on the tort feasor. The court felt that allowing recovery for MacKenzie would require dog owners to kennel their dogs, muzzle them or lock them in cages inside the home. It would be unreasonable to force homeowners to lock up their dogs at all times to avoid liability.
The common feature between Alwin and Fandrey is that it can truly be said that to impose liability in either case would have resulted in a pure penalty for dog ownership. The question that should be asked in any dog bite case is what else could the dog owner have done to have avoided injury to the plaintiff. If the answer to that question is punitively unreasonable, then, an argument might be made that the imposition of strict liability would effectively "result in a pure penalty for dog ownership."
When examining the next dog bite case, consider the liability facts carefully. If liability seems particularly harsh, review the public policy considerations to see if liability can be limited. It may not be just another dog bite case.
. 2004 WI 62, ___ Wis, 2d ____, 680 N.W. 2d 345.
. 1) "[T]he injury is too remote from the negligence"; 2) Recovery is "too 'wholly out of proportion to the culpability of the negligent tort-feasor'"; 3) "[I]n retrospect it appears too highly extraordinary that the negligence should have brought about the harm"; 4) Allowing recovery "would place too unreasonable a burden upon [the tortfeasor]"; 5) Allowing recovery would be "too likely to open the way to fraudulent claims"; or 6) Allowing recovery "would 'enter a field that has no sensible or just stopping point.'" Colla v. Mandella, 1 Wis. 2d 594, 598-99, 85 N.W.2d 345 (1957).
. Wis. J.I.-Civil 8012.
. See, Baumgart v. Spierings, 2 Wis. 2d 289, 86 N.W.2d 413, 415 (1957); Hofflander v. St. Catherine's Hospital, 2003 WI 77, ¶ 108.
. 141 Wis. 2d 804, 416 N.W.2d 906 (Ct. App. 1987)
. Becker, 416 N.W.2d at 912.
. 2000 WI App. 92, 234 Wis. 2d 441, 610 N.W.2d 218.
. Fandrey, at ¶ 30.
. Fandrey, at ¶ 8.
. Fandrey, at ¶ 9.
. Fandrey, at ¶ 21.
. "Legislative silence with regard to new court-made decisions indicates a legislative acquiescence in those decisions." State v. Olson, 175 Wis. 2d 628, 641, 498 N.W.2d 661 (1993).
. Fandrey, at ¶ 36, 39.
. Fandrey, at ¶ 39.
. 140 Wis. 2d 782, 412 N.W. 2d 155 (Ct. App. 1987). See, Daggett v. Trewartha, 1988 WL 84211 (Wis. Ct. App. 1988) (unpublished opinion not to be cited as precedent or authority per § 809.23(3)); Helmeid v. American Family Mut. Ins. Co., 2002 WI App 56, ¶ 10, n. 3, 2002 WL 122924 (unpublished opinion not to be cited as precedent or authority per § 809.23(3)).
. Fandrey, at ¶ 28.
. In its decision, the court noted, "[e]ssentially the only thing the Beliunases did 'wrong' here was to leave their door unlocked." Fandrey, at ¶ 34.
. Alwin, at ¶ 14.
. Fandrey, at ¶ 33.
. Fandrey, at ¶ 35.