Commentary: I am not my brother’s dog’s keeper

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Mark Twain once remarked that the major difference between a man and a dog is that, if a dog is cold and hungry, and you shelter and feed it, the dog will be grateful. The man, in contrast, will steal your best whiskey.

Twain’s remark played out in a case that the Wisconsin Supreme Court decided on Dec. 29, Pawlowski v. Seefeldt, No. 2007AP2651. A homeowner, Nancy Seefeldt, allowed a man and his dog to stay in her home rent-free. When the dog attacked a neighbor walking down the street, the man split town rather than take responsibility. Because he was nowhere to be found, the neighbor sued Seefeldt under Wisconsin’s statute providing strict liability statute for dog bites, sec. 174.02.

The Supreme Court unanimously held that Seefeldt was strictly liable as a “keeper” or “harborer” of the dog within the meaning of the statute.

I’ll grant that the court’s analysis is not unreasonable, given the breadth of the statutory language and the court’s prior precedents. Had the decision rested solely on that, I’d have little to say.

But inasmuch as the court actually defended its ruling on policy grounds, I can’t let this go.

Noticeably absent from the opinion is even a trace of understanding of how people and dogs actually live.

On at least two different occasions that I can recall, I have lived with two women at the same time. One woman owned the house, and the other woman owned a dog.

One of the dogs was a timid little pit bull that used to skulk away with its tail between its legs whenever I entered the room. The other was a Great Dane, with a tail like a whip, and whenever he’d wag it, I’d wish my legs were two inches longer.

Needless to say, I had about as much control over these dogs as I had over the women I lived with — which is to say, none. And the woman who owns the house had no control over these dogs either. They wouldn’t sit, or roll over and play dead if we ordered them to. And if they were running across the yard into the street, they certainly wouldn’t have stopped just because one of us might yell, “Stay!”

In short, they weren’t our dogs. We lacked “care, custody or control” over them. But under the court’s opinion, if one of those dogs had ever attacked anyone, I would be free from liability, but the homeowner would be strictly liable for any damages just because she owned the house.

Before the Supreme Court, Seefeldt argued that to burden her with strict liability would make her an insurer of the dog’s owner, and that she was simply being used as a deep pocket.

Rather than acknowledging this assertion to be indisputably true, the Supreme Court disagreed: “In allowing an unknown dog to live in owner’s home, it is not unreasonable that the homeowner take precautions to ensure that the dog is leashed or restrained in some manner when walking in the street.”

In reality, of course, the homeowner would have to post a guard outside every door, 24 hours a day, to ensure that her housemate’s dog never exited the house unrestrained. Since that is not reasonable, or even feasible, the effect of the court’s rule is that a homeowner is a de facto insurer of the dog’s owner.

So to add an addendum to Mr. Twain’s quip: in Wisconsin, if you feed and shelter a man, that does not make you strictly liable for his torts; but you are responsible for the man’s dog.