Feister v. Bosack
Feister v. Bosack
Opinion of the Court
In this action for damages for injuries sustained as a result of a dog bite, plaintiff appeals the grant of summary disposition to defendant Edward Runyon, lessor of residential property to defendant Gordon Bosack, the dog’s owner. We affirm.
Bosack and his wife occupied Runyon’s single-
Plaintiff sued both Bosack and Runyon, alleging strict liability against Bosack under the dog-bite statute, MCL 287.351; MSA 12.544, and common-law negligence against Runyon. In granting Runyon summary disposition, the circuit court reasoned that because Bosack had not owned the dog when he entered the lease, Runyon could not be liable. We agree. A landlord has no duty to protect third parties from injuries inflicted by a tenant’s pet that occur away from the leased premises.
Although couching its decision in terms of "no duty,” the circuit court, in its oral ruling, did not identify the court rule it applied. The written order relied on MCR 2.116(C)(10). Under either MCR 2.116(C)(8) or (0(10), summary disposition was appropriate.
A motion under MCR 2.116(C)(8) (failure to state a claim upon which relief may be granted) tests the legal sufficiency of a claim by the pleadings alone. Michigan Ins Repair Co, Inc v Manufacturers Natl Bank of Detroit, 194 Mich App 668, 673; 487 NW2d 517 (1992). All factual allegations supporting the claim are accepted as true, as well as any reasonable inferences or conclusions that can
A motion for summary disposition under MCR 2.116 (C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Michigan State AFL-CIO v Civil Service Comm, 191 Mich App 535, 546-547; 478 NW2d 722 (1991); Panich v Iron Wood Products Corp, 179 Mich App 136, 139; 445 NW2d 795 (1989).
Statutory liability for dog bites attaches only to owners. See MCL 287.351; MSA 12.544 and MCL 287.288; MSA 12.539. Only one published Michigan case has examined a landlord’s liability for injuries inflicted by a tenant’s dog. In Szkodzinski v Griffin, 171 Mich App 711; 431 NW2d 51 (1988), a child who was bitten by the tenant’s dog on the leased premises sued both the tenant and the landlord. This Court found that the landlord "had no control or possession of either the [leased] premises or the dog.” Id. at 713. The plaintiff urged the Court to adopt a rule of strict liability "where the landlord knew at the time that he leased the premises that the tenant would be keeping a dog on the premises,” but the Court
Plaintiff relies on language in Szkodzinski that "the only possible way that defendant could be held liable on a common law theory would be if he knew of the dog’s vicious nature.” Id. From this language, plaintiff infers that once a landlord knows about a dog’s dangerous proclivities, the landlord must act to protect all potential victims from the dog. We decline to draw this inference.
Szkodzinski cited Strunk v Zoltanski, 62 NY2d 572; 468 NE2d 13; 479 NYS2d 175 (1984), which held:
The general rule is that, in conventional settings in which premises are rented by a tenant who acquires exclusive possession and control, the landlord is not liable for attacks by animals kept by the tenant on those premises where the landlord had no knowledge of the animal or its dangerous proclivities at the time of the initial letting of the premises. ...
The principle with respect to the liability of a landlord whose tenant comes into possession of the animal after the premises have been leased [is] (that to establish liability it must be shown that the landlord had knowledge of the vicious propensities of the dog and had control of the premises or other capability to remove or conñne the animal). . . . [Id. at 575; emphasis supplied.]
See also McCullough v Bozarth, 232 Neb 714, 724; 442 NW2d 201 (1989) (landlord liable only if he knew of dangerous dog at time of lease); Duhaime v Mills, — Conn Supp —; — A2d —; 1992 WESTLAW 154896 (Conn Super, June 30, 1992) (landlord liable if he knew of dog at time of lease); Virgil v Payne, 725 P2d 1155, 1157 (Colo App, 1986) (landlord’s duty of care is limited to in
Moreover, courts have been reluctant to impose liability for off-premises attacks when the dog has escaped from the tenant’s control. See, generally, anno: 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. In Wright v Schum, 105 Nev 611, 613; 781 P2d 1142 (1989), the Nevada Supreme Court held that "the injuries to [the plaintiff] did not occur on the rented premises and . . . were not directly related to a dangerous condition of the premises.” The landlord "had no initial duty to protect [the plaintiff] and others from injuries caused by his tenants’ escaped pit bulldog.” Id. at 618. Nor was the landlord liable for failure to evict a tenant with a dog "known by him to be dangerous.” Id. at 613. See, also, e.g., Gibbons v Chavez, 160 Ariz App 73; 770 P2d 377 (1988) (summary disposition for landlords proper where tenants’ dogs escaped, even though landlords knew tenants kept dogs); Olave v Howard, 547 So 2d 349 (Fla App, 1989) (landlords had no common-law liability when dog escaped); Ward v Young, 504 So 2d 528 (Fla App, 1987) (no liability for off-premises injury); Allen v Enslow, 423 So 2d 616 (Fla App, 1982) (no liability to passerby).
Plaintiff suggests that a landlord could exercise control over a dog by evicting the tenant, relying on several cases from foreign jurisdictions. For example, Uccello v Laudenslayer, 44 Cal App 3d 504; 118 Cal Rptr 741 (1975), found a landlord potentially liable for injury to a tenant’s guest, but
We reject the Uccello approach. Even if Runyon could have evicted the Bosacks in time to protect this plaintiff, the result would only have been to expose other individuals to the same dog.
As the court said in Wright v Schum, supra at 613:
[H]olding landlords liable for the actions of their tenants’ vicious dogs by requiring them to evict tenants with dangerous dogs would merely result in the tenants’ moving off to another location with their still dangerous animals. . . . [T]his approach [is like the case of] "Typhoid Mary,” who was outcast from one place only to continue her deadly disease-spreading activity at another place.
Even if we accepted plaintiff’s theory, which we do not, the landlord had no ability to control the tenants and their dog in the scant two days between notice of the attack on Bosack’s son and plaintiff’s injury. Two days was not sufficient time to evict. MCL 554.134(1); MSA 26.1104(1) provides
If a third party is injured before the landlord lawfully could have evicted the tenant, the landlord cannot be liable, even if he knew about the dog’s vicious nature. See, e.g., Roy v Neibauer, 191 Mont 224, 226; 623 P2d 555 (1981), where the court found no duty on the landlord’s part, "since [the landlord] had no control over the dog or the right to dispose of [it] prior to the child’s injury.” See, also, e.g., Parker v Sutton, 72 Ohio App 3d 296, 300; 594 NE2d 659 (1991) (no liability if insufficient time for legal measures to abate the hazard); Fernandez v Marks, 3 Hawaii App 127; 642 P2d 542 (1982) (statutory notice requirement prevented landlord from evicting tenant between first dog-bite incident and the plaintiffs injury); Shafer v Beyers, 26 Wash App 442, 449; 613 P2d 554 (1980) (three-day period between notice and the plaintiffs injury insufficient to evict).
In summary, we hold that the landlord owed no duty to protect third parties from attacks by his tenants’ dog taking place off the leased premises where the dog was acquired after the premises were leased. A landlord has no duty to inspect the premises to discover the existence of a tenant’s dangerous animal. As the Minnesota Supreme Court said in a similar case, "[determination of policy on this matter is a question for the legislature.” Gilbert v Christiansen, 259 NW2d 896, 898 (Minn, 1977).
See, also, Parker v Sutton, 72 Ohio App 3d 296, 300; 594 NE2d 659 (1991) (no common-law negligence where property was in tenant’s exclusive control at time of injury); Goddard v Weaver, 558 NE2d 853, 854 (Ind App, 1990) (no liability where owner of mobile home park did not retain control over property where the attack occurred); Ireland v Raymond, 796 SW2d 870, 872 (Ky App, 1990) (summary disposition for landlords proper where they had no control over "circumstances”).
Concurring Opinion
(concurring). I am not prepared to adopt the broad rule articulated in the last paragraph of the majority opinion, or the reasoning by which the conclusion to adopt the rule is reached. However, I concur in the result affirming summary disposition in defendant’s favor because defendant only had two days’ notice of the dog’s vicious propensity before it bit the child. Because this was insufficient time to evict the owners, the factual support for plaintiffs claim fails and the motion for summary disposition was proper under MCR 2.116(0(10).
Reference
- Cited By
- 24 cases
- Status
- Published