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Homeowner is liable for tenant’s dog

An on-premise landlord is strictly liable if his tenant’s dog bites someone.

A divided Wisconsin Court of Appeals on Dec. 3 distinguished traditional landlord-tenant arrangements (in which the landlord is not liable), from those where the landlord and tenant occupy the same residence.

Walter Waterman and his two dogs were living at the home of Nancy L. Seefeldt in 2003, without paying rent.

One day, Waterman exited the home with the dogs to go to the store. However, the dogs immediately charged across the street, and one of the dogs bit Colleen Pawlowski three times.

Pawlowski sued Seefeldt, alleging strict liability under sec. 174.02. However, the circuit court granted summary judgment in favor of Seefeldt, holding that she was not a “keeper” of the dog within the meaning of the statute.

Pawlowski appealed, and the Court of Appeals reversed in a decision by Judge Lisa S. Neubauer. Judge Richard S. Brown wrote a concurrence, and Judge Harry G. Snyder dissented.

Under the statute, an “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.” Section 174.001(5) defines an “owner” as “any person who owns, harbors or keeps a dog.”

Homeowner As Keeper

Neubauer wrote for the majority, “By permitting Waterman’s dogs to reside at her home over a period of months, Seefeldt provided them with both shelter and protection on an ongoing basis and was therefore a keeper.”

The court distinguished several cases holding that a commercial landlord is not a keeper of his tenant’s dogs. Hagenau v. Millard, 182 Wis. 544, 195 N.W.718 (1923); Malone v. Fons, 217 Wis. 2d 746, 580 N.W.2d 697 (Ct. App. 1998); and Gonzales v. Wilkinson, 68 Wis. 2d 154, 227 N.W.2d 907 (1975).

Instead, the majority found the case governed by Koetting v. Conroy, 223 Wis. 550, 270 N.W. 625 (1936). In Koetting, the court held that, although not the legal owner of the animal, a person who allows a dog to be kept at his dwelling and even feeds it from his table is a keeper and thereby subject to liability for the dog’s conduct.

Seefeldt argued that Koetting was no longer valid law, after Armstrong v. Milwaukee Mut. Ins. Co., 202 Wis.2d 258, 549 N.W.2d 723 (1996), but the court disagreed.

In Armstrong, the Supreme Court held that a dog owner was not liable for a dog bite to an employee of a kennel, because once the owner relinquished control of the dog to the kennel, the employee became the “keeper” of the dog.

Custody, Care and Control

Distinguishing Armstrong, the Court of Appeals in the case at bar held, “the keeper status ends when the keeper relinquishes not only control, but also shelter or custody — such that the custody, care and control of the dog are all exercised by the owner. It is then that the keeper’s “authority” over the dog is at an end (emphasis in original).”

Because Seefeldt continued to maintain the dog at her home, and never relinquished custody of it, the court concluded that she remained a “keeper” strictly liable for the dog bites.

Judge Brown wrote separately to defend the policy choice to hold homeowners strictly liable for dogs living in their homes.

Brown wrote, “I do not believe the [L]egislature meant to allow the keeper of the dog to avoid strict liability … by pointing a finger at someone else and arguing that at that certain moment in time, even though the dog was still within the perimeter of the owner’s property, he or she had temporarily stopped being the keeper. To allow such a result would be to drown the statute in a sea of minutiae.”

Snyder dissented, concluding that Koetting was inconsistent with an earlier precedent, Janssen v. Voss, 189 Wis. 222, 207 N.W. 279 (1926). Janssen held that a keeper, as opposed to an owner, has only limited authority over the dog, and therefore is liable only if he has actual control over the dog at the time of the accident.

Snyder also criticized Koetting for improperly extending the holding in Hagenau v. Millard, 182 Wis. 544, 195 N.W. 718 (1923). In Hagenau, the dog was owned by the defendant’s child; in Koetting, it was owned by the defendant’s adult daughter.

Snyder maintained that it was incorrect for the Supreme Court to equate the adult daughter in Koetting with the child in Hagenau.

Case Analysis

Even assuming that policy considerations support the decision in this case, whether Koetting remains valid law would be a good issue for review in the Wisconsin Supreme Court.

In this case, the attack began while the dogs were on the homeowner’s property — they ran from the house, across the street, to make the attack.

Under the court’s holding, however, and under Koetting, the homeowner would still be liable for an attack that occurred miles away from the property, while the dog was under the exclusive control of his tenant. In Koetting, the homeowner’s adult daughter was taking the dog for a walk at the time of the attack.

As a policy matter, there is no reason why a property owner should be liable for such attacks, when he does not own the dog, exercises no care for it, and merely permits the dog and its owner to live in his home.

Even Judge Brown’s concurrence, which discusses the policy issues, rather than the case law, emphasizes that “the dog was still within the perimeter of the [home]owner’s property.”

The concurrence also speaks of injury to “neighbors, passers-by and others in proximity.”
Yet, if Koetting is still valid law, these considerations are irrelevant; the homeowner is liable, wherever the attack occurs, despite the absence of any proximity to the homeowner’s property.

Also, there is a certain fallacy in the following statement by the court: “the [homeowner’s] keeper status ends when the keeper relinquishes not only control, but also shelter or custody — such that the custody, care and control of the dog are all exercised by the owner. It is then that the keeper’s ‘authority’ over the dog is at an end.”

On its face, this sentence equates shelter and care.

However, homeowners in the position of Seefeldt do not provide care for their tenants’ dogs (nor custody or control for that matter); they provide shelter, and shelter only.

Thus, the court’s opinion illogically says that, to cease being a keeper under the statute, a homeowner must relinquish powers that he doesn’t have in the first place.

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