DOG BITE IN MICHIGAN

By Michael Hohauser

Many practitioners are under the mistaken impression that Michigan recognizes strict liability under statute for dog bite. This is a misconception. Michigan actually recognizes two separate and distinct causes of action for dog bite. These causes of action may be plead in the alternative. Nicholas v Lorenz, 396 Mich 53, 59 (1976). Neither of these causes of action represents strict liability.

Michigan has never abrogated the common law cause of action for dog bite. Common law liability for dog bite is, of course, ancient. Preservation of this cause of action is found in statute. MCLA 287.288; MSA 12.539, et seq., and recognized in case law. Grummel v Deeker, 294 Mich 71 (1940); Nicholas, supra.

The predicate to liability under common law in Michigan is knowledge on the part of the dog’s owner of the animal’s propensity to viciousness. Grummel, supra. Propensity to viciousness does not mean that the dog has previously bitten. It requires proof of a vicious, dangerous nature versus ferocious nature, but doesn’t require proof of previous bites. Conversely, this cause of action will not necessarily be successful if the dog has previously bitten. Michigan does not recognize a “one bite” rule. The question is simply: “Does the owner or controller of the animal know or should that person know that the dog has a propensity to be vicious?” Evidence of a previous bite may be relevant, but it is not determinative on the issue.

The second cause of action recognized in Michigan comes under the so-called, Dog Bite Act. MCLA 287.351, et seq., MSA 12.544. This Act is often referred to as one of strict liability. It represents strict liability only insofar as it does not require fault on the part of the dog owner. The elements of liability under the Act are:

• Ownership of the animal;
• a bite;
• lack of provocation;
• and the person is legally on the premises.

The inclusion of a requirement that the dog not be provoked in order to establish liability under the Act removes the statute from strict liability in any real sense. Where the dog has been provoked, liability does not attach. This is so even if the response of the animal to the provocation is substantially disproportionate to the nature of the provocation itself. Provocation may even be found as the result of the acts of a third party as opposed to the injured person.

One of the great difficulties with the Act is lack of definition. Just as there is no statutory definition of “viciousness” with reference to the common law cause of action, there is no definition of “provocation” under the so-called, “Dog Bite Act.” Since there is no definition of provocation, this leaves wide latitude for the trier of fact. It also presents unique trial opportunities for the defense. Literally any act which elicits a vicious response from the animal may be found to be provocation. Intent is not an issue. Even accidental acts may be provocation.

On the subject of provocation, there is a definition of the term but it is contained in a separate statute. MCLA 287.321(d); MSA 12.545(21). The act cited is actually a criminal statute that does not pertain to dog bite. Therefore, the definition may not apply in a case under the Dog Bite Act. The definition contained under this statute is:

• “Provoke” means to perform a willful act or omission that an ordinary and reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal. MCLA 287.322.

This definition offers reasonable limitations on the concept of provocation which do not exist at this time under the Dog Bite Act.

Because there is no definition of provocation in the Act itself, the prejudices unique to every juror control the outcome of trial. For instance, where a 3-year-old girl has accidentally stepped on the tail of a dog, and the dog has bitten in response, it was appropriate on the part of the jury to find provocation. Nicholas, supra at 56. The logical implications of this decision are to the effect that any slight act on the part of a person without respect to motive, age, knowledge or ability may be considered provocation. Should such provocation meet with deadly response, this would be a bar to recovery.

At trial, the defense will frame the debate by asking each juror individually: “What comes to mind when you think of provoking a dog?” By establishing a definition among the prospective jurors which reduces provocation to its lowest possible denominator, the defense has an opportunity to overcome liability in virtually any situation where the dog has reacted to outside stimulation. Children splashing in a pool may be sufficient provocation for a dog to bite an innocent bystander.

A similar result may be obtained with regard to asking each juror for a definition of “viciousness.” Jurors will generally define a “vicious” animal as one that snaps, snarls and bites regularly. In this way, an individual may keep a dog which has bitten on several occasions, but which is not generally “vicious.” By thus framing the debate, the defense may be able to exclude liability, even where a dog has bitten numerous times.

There are jury instructions with regard to the Dog Bite Act. SJI 80.02. This instruction sets forth the elements of the statute. It doesn’t contain a definition of provocation. It is of little guidance to the trier of fact.

There are no jury instructions with regard to common law liability. A suggested instruction is included as an appendix to this article.

In terms of trial strategy, it is recommended that the plaintiff initiate the debate with regard to definitions of provocation and viciousness on voir dire. The trial practitioner must know the breadth of activities which the jury may apply as provocation. Likewise, the practitioner must know if the jury requires a “junkyard” dog reputation before applying the viciousness standard under common law.

In many situations it will be difficult, if not impossible, to know the reputation of the animal for viciousness or propensity to bite prior to filing the complaint. Therefore, it is recommended that each complaint contain a separate count alleging common law liability and liability under the Dog Bite Act.

Conclusion

The lack of definition in statute has created an area of law which is both unclear and unjust. It is difficult to believe that any reasonable legislator would intend that a child accidentally stepping on a dog’s tail should be sufficient provocation for mutilation. Likewise, it is difficult to see how the legislature would intend that the owner of a pit bull accidentally provoked by children skipping or racing past the house would be relieved of liability because of actions which might be interpreted as provocation in the mind of the dog. Indeed, the lack of definition in the statute seems to leave the affair to a sense of what amounts to provocation in the mind of a dog, which hardly makes sense. Is a child reaching for a ball in a dog’s mouth provocation? Why should an innocent bystander bitten by a dog which was provoked by others be barred from recovery? The definition contained in MCLA 287.321(d) would solve these problems. That is because the defendant refers to a “willful act” which a reasonable person would believe might result in an attack.

It is the writer’s contention that the Michigan Legislature intended to adopt a form of strict liability in this State limited by a which recognition that certain circumstances represent justifiable provocation. The question is: “What is justifiable provocation?” Without a definition included in the statute to guide the debate literally anything from the most menial, unintended act upward may be provocation. The informed trial practitioner should be aware of this problem and prepared to address it at the voir dire stage.