Ruling could raise liability risk for property owners

Listen to this article

The Wisconsin Supreme Court’s decision, expected by the end of this term, in Julie A. Augsburger v. Homestead Mutual Insurance Co., could markedly increase liability risk for property owners who allow dogs on the premises, according to defense counsel in the case.

The justices heard oral arguments Sept. 4 in the case, which could decide if the Wisconsin statutory definitions of “harboring” and “owner” will encompass a man who allowed his daughter and her family, along with up to six dogs for which he had no responsibility for training or control, to live on his property rent free.

The appellate court found that defendant George Kontos was responsible as an “owner” under Wis. Stat. Section 174.02, indicating there was no public policy position that would prevent the court from find him responsible, even if he lived seven miles away from the property where the dogs stayed and eventually bit a woman.

But if this policy survives state Supreme Court review, cautioned counsel for Kontos, “then every landlord that fails to promptly evict a nonpaying tenant with a dog, every vacation cabin owner that allows relatives who own dogs to stay at his property during the offseason, and every homeless shelter or nursing home that allows a dog on the premises is at risk of liability.”

Plaintiff Julie Augsburger sued Kontos, his daughter, Janet Veith, and her family after being bit by dogs belonging to the Veith’s, on Kontos’ property. The circuit and appellate courts found on summary judgment that Kontos was an “owner” and “harboring” the six dogs under Wis. Stat. Section 174 at the time of the June 2008 attack.

Kontos’ primary argument on appeal was that he had no control of or care for the dogs when they attacked Augsburger, and that it would be against public policy and contrary to Wisconsin law and the prevailing case and statutory laws of other states to find him responsible.

The precise language of Wis. Stat. 174.02(1)(a) is a strict liability statute which states:

“… the Owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.”

The statute further clarifies the definition of ‘Owner’ in 174.001(5) to include ‘any person who owns, harbors or keeps a dog.’”

According to defense counsel’s brief, however, public policy better supported the idea that Kontos be viewed as a pro bono landlord. Wisconsin law provides some protection to landlords for harm done by the animals kept by their tenants.

To support this, Kontos first looks for support from the Wisconsin Supreme Court’s decision in Pawlowski v. American Family Mutual Ins., 2009 WI 105. In that case, the owner allowed her adult daughter’s unemployed friend and two dogs to stay rent-free in a bedroom in a shared house with the owner.

When this unemployed friend opened the front door one day to leave the property, the dogs ran off the porch and attacked a woman walking past the house. The court found that since the owner lived on the property, she was both an “owner” and “harboring” and thus liable under the law.

Kontos contends that although his case was not factually on point with Pawlowski, the court’s analysis of the definition of both “owner” and “harboring” were favorable to his position in that some control or care of the dog was necessary. Additionally, the Pawlowski court repeated how the goal of Wis. Stat. 174.02 was to provide protection to the general public that has no control over such dogs, according to defense counsel’s brief.

Kontos also faulted both the circuit and appellate court for inadequately factoring in the state Supreme Court’s earlier decisions, including its reasoning in Smaxwell v. Bayard, 2004 WI 101.

In Smaxwell, a property owner lived next door to one of his rental properties where for years several dogs were kept by the rent-paying tenant. In that case, the court found the owner not liable in part on public policy grounds, stating that it was better to focus on the defendant actually responsible for taking care of the dog than sniffing around for a possible “deep pocket” defendant with the most “affluence.”

Counsel for Kontos also cited the dissenting underlying appellate court opinion of Judge Paul Reilly in this case. Reilly feared that if liability were extended to a defendant like Kontos, that could make “every person who donated to a local humane society liable for the injury caused by the dogs that the society shelters.”

But according to counsel for the plaintiff, Kontos should fail in his effort to redefine what an “owner” and “harboring” is under Wis. Stat. 174 in part because he doesn’t separate the two categories of cases that deal with either common or statutory law.

In Wisconsin, the legislature in Wis. Stat. 174.001(5) and 174.02 intended to create strict liability for owners to protect the public from injurious dogs. So any effort to mix common law cases where the court looks at who controls and “has dominion over” dogs should not be casually intermingled with analysis of statutory cases.

This distinction not only undercuts Kontos’ reliance on many Wisconsin cases, according to plaintiff’s counsel’s brief, but also marginalizes his reliance on out-of-state cases Carr v. Vannoster (Kansas) and Auster v. Norwalk United Methodist Church (Connecticut).

Also, the Pawlowski definition of “harboring,” drawn from Patterman v. Patterman, is “to afford lodging, to shelter or to give refuge to a dog,” which, by its language, does not inherently include any obligation to “control” a dog for liability to attach.

According to Augsburger, Kontos wants the Wisconsin Supreme Court now to expand that definition to include “control” or “keeping” of a dog, so Pawlowski would have to be overturned.

Kontos denies wanting to overturn Pawlowski, however, and said he only wants the court to confirm that “harboring” a dog by an “owner” for purposes of Wisconsin law should include some history of care or responsibility for the dog, which can be accomplished without directly overturning Pawlowski.