O'Flaherty Heim Birnbaum Kirchner & Curtis Ltd.

O'Flaherty Heim Birnbaum Kirchner & Curtis Ltd. > Featured Articles > Court of Appeals Broadly Construes Dog Bite Liability Statute

Court of Appeals Broadly Construes Dog Bite Liability Statute

In a case potentially of interest to any dog owner, in Augsburger v. Kontos, the Wisconsin Court of Appeals broadly construed the word “owner” under Wis. Stat. § 174.02, which subjects the owner of a dog to strict liability for any injuries caused by it.  The Court ruled that the owner of a home in which he did not reside but who permitted his adult daughter to live there was an “owner” of dogs kept by his daughter and was therefore strictly liable when the dogs attacked a visitor to the home.

Defendant-owner purchased a home for the purpose of eventually retiring there and, in the meantime, to provide a place for his daughter and her family to live near Defendant’s ill wife.  Defendant’s daughter did not pay any rent.  Defendant himself did not live on the property but resided in a home several miles away.  Defendant visited the property on multiple occasions.  At the time of the attack, Defendant was aware that there were at least five dogs living on the property and on at least one occasion Defendant was observed disciplining the dogs when they were “playing roughly”.  Defendant admitted that he could have told his daughter’s family that they could not keep the dogs at the property.  While visiting the property, Plaintiff was attacked by several of the dogs and she brought claims against Defendant (among others) for her injuries.  The circuit court granted Plaintiff summary judgment and he sought and was granted an interlocutory appeal.

The Court of Appeals affirmed the trial court.  Wis. Stat. § 174.001(5) defines the owner of a dog under Wis. Stat. § 174.02 as “any person who owns, harbors or keeps a dog.”  The Court rejected Defendant’s arguments that he was not the dogs’ owner because he did not exercise any custody or control over them and that he did not harbor them because he did not live in the home in which they resided. 

Because it was undisputed that Defendant did not own or keep the dogs involved, the Court discussed whether or not Defendant was harboring them.  The Court relied on and discussed the case Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105, 322 Wis. 2d 21, 777 N.W.2d 67.  In Pawlowski the Wisconsin Supreme Court stated that harboring “means to afford lodging, to shelter or to give refuge to a dog” and that harboring lacks the proprietary aspect of keeping.  Because Plaintiff did not assert that Defendant was keeping the dogs at the time of the attack but rather was harboring them, the fact that Defendant did not exercise custody or control over the dogs was irrelevant.  In addition, the fact that Defendant lived in a separate residence from the dogs was only relevant if the issue was whether Defendant was a keeper of the dogs.  The legislature’s use of the broader term “harbor” encompassed individuals who afford lodging, etc. to dogs even if they do not live in the same residence as the dogs.  Accordingly, because Defendant permitted his daughter’s family to live with their dogs in property he owned, Defendant was strictly liable for the injuries caused by the dogs as a harborer even if he did not live in the same residence as the dogs.

The Court also rejected Defendant’s alternate argument that public policy considerations should preclude liability even if he was harborer of the dogs under Wis. Stat. § 174.02.  The Court ruled that the injury was not too remote from negligence or too disproportionate to Defendant’s culpability because Defendant had knowingly permitted a “sizable pack of dogs to reside at the property for a number of months”,  had been to the house on multiple occasions with the dogs present, had disciplined the dogs, did not put in place any rules or safety devices to control the dogs, did not attempt to limit the number of dogs at the property, did not inquire regarding the dogs’ temperament, did not take any steps whatsoever to ensure the safety of visitors to a property he owned, and Plaintiff was attacked while visiting the property and not, for example, while Defendant’s daughter had the dogs off the property for a walk.  The Court ruled on similar grounds that liability would not place too unreasonable of a burden on Defendant as a mere owner of the property and would not lead to open-ended liability.           

A dissent criticized the majority for its “mechanistic” and “hypertechnical” decision.  The dissent noted that not a single case cited by the majority found that a person who lives in a home separate from an injury-causing dog is its owner simply because the person owned the property where the dog resided with its legal owner.  The dissent argued that under the majority’s stretched interpretation of the statute, any person who donates to a local humane society would be liable for injuries caused by the dogs sheltered there.  The dissent was also critical of the majority’s refusal to consider whether or not Defendant-owner was entitled to the exemption from liability traditionally afforded landlords whose tenants keep dogs on rented property.  The majority asserted that Defendant-owner had never actually indicated that a landlord-tenant relationship existed, so it did not consider the issue.  The dissent believed that Defendant properly raised the issue and it should have been considered and applied in Defendant’s favor, as here, Defendant was “akin to a pro bono” landlord.  Applying the landlord exemption would also have served the public policy reason of the landlord exemption of placing responsibility where it actually belongs “rather than fostering a search for a defendant whose affluence is more apparent that his culpability”.

Comments are closed.