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Dog-bite case challenges


“They’re not the easiest cases to try, just about everybody on a jury owns a dog and likes dogs and sees themselves in the position of the defendant.”

Lynn R. Laufenberg,
Laufenberg & Hoefle,

Dog-bite cases dominated the discussion during the annual summary of developments in general negligence and insurance law at the Wisconsin Academy of Trial Lawyers summer conference in Door County.

“They’re not the easiest cases to try,” said Lynn R. Laufenberg, of Laufenberg & Hoefle in Milwaukee, as “just about everybody on a jury owns a dog and likes dogs and sees themselves in the position of the defendant.”

Two recent Wisconsin Supreme Court decisions added to the potential obstacles faced by dog-bite plaintiffs.

In June, the Wisconsin Supreme Court limited the reach of Wisconsin Statutes Section 174.02, which holds owners strictly liable for injuries inflicted by their dogs, in Fandrey v. American Family Mutual Ins. Co., 2004 WI 62. Justice Jon P. Wilcox wrote the opinion.

“It tells us that there are public policy limitations to the strict liability imposed by 174.02,” Laufenberg said of the decision. “It’s an unusual fact situation, and you feel empathy for both sides in this case when you read those facts.”

The injuries at issue followed a woman’s decision to deliver Christmas cookies to a friend. The woman did not call first, but knocked, opened the friend’s unlocked door, stepped inside and called out. Although no one answered, she proceeded to place the cookies on the kitchen table. As she was writing a note, her 3-year-old daughter went into the living room. The child screamed, and the mother found her bleeding from the mouth and standing near the friend’s dog.

The Court agreed with the trial court that to impose liability under the circumstances would have been too out of proportion with the defendants’ culpability, placed too unreasonable a burden on the defendants and entered a field that has no sensible or just stopping point.

“We think it unreasonable to force homeowners to keep their homes and dogs under lock and key at all times to avoid liability,” the opinion stated.

Similarly, the Court refused to permit liability on public policy grounds in an opinion issued this month under the rationale that a contrary decision would essentially force landowners to erect fences around their property to avoid exposure to liability for injuries caused by dogs they do not own or keep.

The case, Smaxwell v. Bayard, 2004 WI 101, arose out of injuries sustained by another 3-year-old child who was playing on her grandmother’s property when she was attacked and seriously injured by wolf-hybrid dogs. The grandmother owned the adjacent parcel of land on which the dogs were kenneled, but one of the grandmother’s tenants owned the dogs.

The majority held that the plaintiffs’ common-law negligence claim was barred by public policy considerations.

“While the facts of the case before us are egregious,” the majority wrote, “allowing liability in this instance — where the defendant landowner/ landlord is neither the owner nor keeper of the dogs causing injury — would enter a field that has no sensible or just stopping point.”

A dissent written by Justice Ann Walsh Bradley and joined by Chief Justice Shirley S. Abrahamson argued that a reasonable jury could conclude that the grandmother failed to exercise ordinary care under the circumstances.

The dissent noted that the landlord was aware that there had been prior complaints from neighbors about the dogs, that several were wolf hybrids, and that one of the dogs had bitten a police officer.

“A proper public policy analysis in this case would not result in [the grandmother] fencing in her property,” Bradley wrote. “Rather, it would result in [the grandmother] taking the necessary measures to prevent dangerous wolf hybrids from running at large on her property when her young grandchildren are outside, unsupervised, at play.”

In another recent dog-bite opinion, the Court permitted a police officer to pursue recovery from the owners of a dog that bit the officer while she was attempting to restrain and capture it. The Court rejected the defendants’ contention that the “firefighters rule” — which generally precludes firefighters from suing homeowners for injuries sustained while extinguishing fires caused by homeowners’ negligence — applied to bar the officer’s claim.

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Wisconsin Academy of Trial Lawyers

In another significant recent ruling not related to dog bites, the Supreme Court this month upheld the dismissal of a claim under Wisconsin’s safe-place statute where a woman slipped and fell when she stepped on a ketchup-soaked french fry after attending an ice show.

In the case, Megal v. Green Bay Area Visitor & Convention Bureau, 2004 WI 98, the Court held that it was not possible to show that the property owner had at least constructive notice
of the unsafe condition. The Court rejected the argument that an exception to the safe-place statute permitted the claim and noted that the plaintiff failed to produce either evidence of the length of time the french fry was on the stair or expert testimony about the usual management and maintenance of like buildings.

But the Court also addressed the question of potential common-law liability under the facts, noting that prior decisions suggested that a common-law negligence theory could not be maintained where a safe-place statute violation is alleged but cannot be shown.

“These analyses are unsubstantiated and incorrect insofar as they preclude a common-law negligence claim if no violation of the safe-place standard of care is established, and we withdraw them,” the Court stated.

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