When dogs bit or injure other people in Michigan, the owner may be civilly liable to the victim for money damages. There are three ways that an injured person can recover a money judgment for dog bites in Michigan:
I. MICHIGAN'S DOG BITE STATUTE
The Michigan Legislature created a cause of action in Michigan that makes the dog owner strictly liable for bites against other people. "Strict liability" means that that the dog owner's responsibility does not depend on intent, recklessness or negligence, but rather is based on the dog owner's absolute duty to prevent the dog from biting other people. If the injured plaintiff can prove the elements of the statute, then he or she will prevail.
MCL 287.351(1) states as follows:
"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."
There are three important aspects of this statute:
- Provocation: "The dog bite statute places absolute liability on the dog owner, except where the dog bites after having been provoked." Hill v Sacka, 256 Mich App 443, 448; 666 NW2d 282 (2003). Although an absolute defense, "provocation" is not defined by statute and has been left to the courts to determine on a case-by-case basis. Provocation can possible include unintentional acts such as the plaintiff accidently stepping on the dog's tail. See Brans v Estrom, 266 Mich App 216; 701 NW2d 163 (2005). However, provocation would not apply where the dogs entered the plaintiff's property already in an aggressive state and bite the plaintiff only after the plaintiff struck the dog to protect her own pets. See Koivisto v Davis, 277 Mich App 492; 745 NW2d 824 (2008).
- Trespassing: Strict liability may not apply if the injured party was trespassing on the dog owner's property before being bitten. "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." MCL 287.351(2).
- No "First Bite" Exception: For the purposes of the dog-bite statute, it does not matter if the owner had any previous knowledge or reason to know that the dog was predisposed to be vicious or dangerous. There is no mulligan if this is the first time that the dog has bitten someone.
II. MICHIGAN'S COMMON LAW STRICT LIABILITY DOG BITE CLAIM
Michigan's common law action for damages against an animal owner is based on the theory that "whoever keeps an animal accustomed to attack and injure mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing and taking care of it." Brooks v Taylor, 65 Mich 208; 31 NW 837 (1887). Unlike the dog-bite statute, the common-law claim requires that the owner knew or had reason to know of the animal's vicious nature.
Trager v Thor, 445 Mich 95, 99; 516 NW2d 69 (1994) provides that a dog owner is strictly liable for a dog bite under the common law claim if the following three elements are present:
- The defendant is the possessor of the animal;
- The defendant has scienter of the animal's abnormal dangerous propensities, and;
- The harm results from the dangerous propensity that was known or should have been known.
Strict liability can attach where the owner knew that the dog has bitten before and did not follow through on his or her absolute duty to ensure that the dog did not bite again. However, it is not enough that the owner knew that the dog has growled or barked before because those are common dog traits and not "abnormal dangerous propensities".
The strict liability dog-bite statute does not abrogate the right of the plaintiff to sue under the common law strict liability dog-bite claim. MCL 287.288.
III. NEGLIGENCE CLAIM
The plaintiff may also sue the dog owner under a negligence theory that he or she failed to use ordinary and reasonable care to protect the plaintiff from injury. This is NOT a strict liability claim and the plaintiff must show that the dog owner was actually negligent in his or her responsibilities regarding the dog. For example, a lack of ordinary and reasonable care could be shown if the dog owner put the dog outside without being put on a lease or contained in an enclosure before it harmed the plaintiff.
The dog-bite statute and the common law strict liability dog-bite claim ONLY applies to injuries caused by dog-bites and NOT other actions of the dog (e.g. dog runs into the plaintiff and knocks him or her to the ground). For other types of dog injuries, the plaintiff would either have to file suit for an intentional tort (e.g. proving dog owner purposely directed the dog to attack the plaintiff) or file suit for a negligence claim. However, the dog owner will have more defenses available to him or her at law to defeat a negligence suit such as contributory negligence or assumption of risk.
IV. STATUTE OF LIMITATIONS
There are strict time deadlines to file a dog-bite lawsuit. Michigan's statute of limitations provides that a claim (whether statutory strict-liability, common law strict-liability or negligence) must be filed within THREE YEARS from the time of the injury. MCL 600.5805(2).
Although a dog owner may appear to be judgment-proof due to living in a low- or moderate-income home, plaintiffs should be aware that most home insurance policies may indemnify the dog owner from injuries caused by the pets on the property. It may be possible to obtain a settlement from the insurance company substantial enough to cover compensatory damages, medical expenses, and pain and suffering damages. However, if the statute of limitations passes, then it will be too late to sue and the ability to recover is lost forever. In the event of a bite from another person's dog (even if the injuries seem to be relatively minor), it is well worth the small investment to speak to an experienced attorney and see what your options are.
If you or a loved one have suffered a dog bite or injury, or you need legal representation to defend against a dog-related claim, then do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC to protect your legal rights today.