CHAPTER 287  ANIMAL INDUSTRY

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LIABILITY OF OWNER FOR DOG BITE

 

MCLS §  287.351 (2002)

 

MCL §  287.351

 

§  287.351.    Person bitten by dog; liability of owner; "person lawfully on property of owner" defined

 

   Sec. 1. (1) If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.

   (2) A person is lawfully on the private property of the owner of the dog within the meaning of this act if the person is on the owner's property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or if the person is on the owner's property as an invitee or licensee of the person lawfully in possession of the property unless said person has gained lawful entry upon the premises for the purpose of an unlawful or criminal act. 

 

HISTORY: Act 73, 1939, p 132; imd eff May 4, 1939.

 

Pub Acts 1939, No. 73, §  1, imd eff May 4, 1939; amended by Pub Acts 1988, No. 142, eff March 30, 1989 (see Mich Const note below).

  

NOTES:

Editor's notes:

    Michigan Constitution of 1963, Art. IV, §  27,  provides:

   "No act shall take effect until the expiration of 90 days from the end of the session at which it was passed, but the legislature may give immediate effect to acts by a two-thirds vote of the members elected to and serving in each house."

 

Cross References:

   Common-law liability of dog owner for damages committed by it, §  287.288.

 

Michigan Digest references:

   Animals § §  13, 15, 16, 18

   Judgments §  18.25

   Parent and Child §  32

 

ALR notes:

   Modern status of rule of absolute or strict liability for dogbite, 51 ALR4th 446.

   Who "harbors" or "keeps" dog under animal liability statute, 64 ALR4th 963.

   Liability for injuries caused by cat, 68 ALR4th 823.

   Liability for injuries inflicted by dog on public officer or employee, 74 ALR4th 1120.

   Landlord's liability to third person for injury resulting from attack off leased premises by dangerous or vicious animal kept by tenant, 89 ALR4th 374.

   Intentional provocation, contributory or comparative negligence, or assumption of risk as defense to action for injury by dog, 11 ALR5th 127.

 

CASE NOTES

 

   1.  Liability

   2.  Contributory negligence

   3.  Evidence

   4.  Instructions

   5.  Questions of law and fact

   6.  Trespassers

 

1.  Liability

   A victim's actions before being bitten by defendant's dog did not amount to provocation, regardless of whether the court adopted a standard that unintentional as well as intentional acts could constitute provocation under the dog-bite statute, where the dog's biting of the victim was out of proportion to the victim's action of unintentionally dropping a ball near the dog. Bradacs v Jiacobone (2001) 244 Mich App 263, 625 NW2d 108.

   A landlord who promulgated rules and regulations regarding tenants' dogs did not owe a third party a duty to use reasonable care to enforce the rules where the landlord did not know of the dangerous proclivities of a tenant's dog who injured the third party. Braun v York Props. (1998) 230 Mich App 138, 583 NW2d 503.

   The doctrine of parental immunity does not bar a child's cause of action based on strict liability of a dog owner for injuries inflicted by an unprovoked dog. Thelen v Thelen (1989) 174 Mich App 380, 435 NW2d 495.

   Where complaint alleges that defendant dog owners were liable for plaintiff's injuries under both common-law and under dog-bite statute, and defendants plead contributory negligence, litigants and trial courts might feel that the claims are so totally incompatible that at some stage of proceedings prior to actual trial plaintiff should be compelled to elect which claim he will pursue and upon which, at trial, he will introduce proofs. Veal v Spencer (1974) 53 Mich App 560, 220 NW2d 158.

   This act places absolute liability on owner, except for provocation of dog, irrespective of place where dog bites a person. Nicholes v Lorenz (1973) 49 Mich App 86, 211 NW2d 550, affd (1976) 396 Mich 53, 237 NW2d 468.

   Defendant owners' 17-year-old daughter who was on premises while owners were not at home could properly be said to be in lawful possession of premises for purposes of applying this section. Cox v Hayes (1971) 34 Mich App 527, 192 NW2d 68.

 

2.  Contributory negligence

   Contributory negligence is not a defense to an action maintained under this section. Veal v Spencer (1974) 53 Mich App 560, 220 NW2d 158.

   Provocation is the only defense in an action under this section; contributory negligence is not a defense, except as the negligence might bear on provocation. Nicholes v Lorenz (1973) 49 Mich App 86, 211 NW2d 550, affd (1976) 396 Mich 53, 237 NW2d 468.

   Three-year-old deaf-mute would not be held to same degree of responsibility for knowledge of existing danger from defendants' dog as would adult licensee for purposes of recovering under this section. Cox v Hayes (1971) 34 Mich App 527, 192 NW2d 68.

 

3.  Evidence

   Appellate court's holding that prior behavior of dog was inadmissible as irrelevant under this section was affirmed by equally divided court. Nicholes v Lorenz (1976) 396 Mich 53, 237 NW2d 468.

   Evidence in action under this section showing that dog was tied on defendant's premises and that minor plaintiff was playing on the premises and stepped on dog's tail raised defense of provocation, which was properly submitted to jury. Nicholes v Lorenz (1973) 49 Mich App 86, 211 NW2d 550, affd (1976) 396 Mich 53, 237 NW2d 468.

   In action under this section, evidence as to dog's prior behavior was irrelevant and admission of testimony as to such behavior was reversible error. Nicholes v Lorenz (1973) 49 Mich App 86, 211 NW2d 550, affd (1976) 396 Mich 53, 237 NW2d 468.

   In nonjury action for dog bite suffered by three-year-old deaf-mute when bitten by defendants' dog while in latter's backyard, trial court's finding that, although defendants' 17-year-old daughter was home alone at time of incident, plaintiff could not be implied licensee was contrary to clear preponderance of evidence disclosing that plaintiff often accompanied defendants' 17-year-old daughter into defendants' yard, that defendants never voiced desire not to have neighborhood children coming into yard to plaintiff or members of her family, and that when children were seen in yard they were not asked to leave. Cox v Hayes (1971) 34 Mich App 527, 192 NW2d 68.

   Under this section, plaintiff may establish right to recovery from owner upon proof by preponderance of evidence that plaintiff was on property as invitee or licensee, either expressed or implied, of owner or one in lawful possession thereof. Cox v Hayes (1971) 34 Mich App 527, 192 NW2d 68.

   In action under this section, exclusion of defendant's conviction in traffic court on charge of harboring vicious dog in violation of city ordinance from evidence was not abuse of discretion in view of dissimilarity between civil and criminal proceedings. Zaitzeff v Raschke (1971) 31 Mich App 87, 187 NW2d 564, revd on other grounds (1972) 387 Mich 577, 198 NW2d 309.

 

4.  Instructions

   Where complaint alleges that defendant dog owners were liable for plaintiff's injuries under both common-law and under dog-bite statute, and defendants plead contributory negligence, a definite problem arises, a proper approach to which would involve a jury instruction which distinguishes between application of the two counts and the application of the defense of contributory negligence to same. Veal v Spencer (1974) 53 Mich App 560, 220 NW2d 158.

 

5.  Questions of law and fact

   An unintentional act may constitute provocation within the meaning of the Michigan dog-bite statute; since the dog-bite statute imposes liability on dog owners without regard to fault, the defense of provocation must be construed without concern for fault on the part of the person committing the provocation; the focus must be on the nature of the act committed, not upon the intent with which the act was committed, and on whether that act was sufficient to provoke the dog's attack; accordingly, it is a jury question whether under a particular set of circumstances the attempt by a minor to hug a dog constituted sufficient provocation so as to render the owner of the animal exempt from liability. Palloni v Smith (1988) 167 Mich App 393, 421 NW2d 699, revd on other grounds (1988) 431 Mich 871, 429 NW2d 593, reconsideration den (1989, Mich) 1989 Mich LEXIS 117 and (questioned in Bradacs v Jiacobone (2001) 244 Mich App 263, 625 NW2d 108).

   In action against owners of dog which bit child and had previously bitten another child, whether previous biting of child had been provoked by victim was properly submitted to jury as issue of fact under evidence, and dog would not be considered vicious as matter of law because it had previously bitten another child. Veal v Spencer (1974) 53 Mich App 560, 220 NW2d 158.

 

6.  Trespassers

   Statutory action for dog bite inflicted on plaintiff when he entered defendants' yard to retrieve ball was properly subjected to summary disposition where it was undisputed that plaintiff had neither express nor implied permission to enter defendants' property and that he knew he was trespassing, so that there was no record which could be developed to raise an issue on which reasonable minds could differ. Alvin v Simpson (1992) 195 Mich App 418, 491 NW2d 604, app den (1993) 442 Mich 888, 502 NW2d 39.