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Justices question liability in dog bite case

By: Eric Heisig//September 4, 2014//

Justices question liability in dog bite case

By: Eric Heisig//September 4, 2014//

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During oral arguments Thursday, the Wisconsin Supreme Court pressed to find the line where liability begins and ends if someone is hurt by a dog bite.

In deliberating Julie A. Augsburger v. Homestead Mutual Insurance Co., the court is expected to address what constitutes a dog’s “owner” when it comes to a lawsuit arising from a dog bite. The question that seemed to weigh on the justices’ minds, though, was when does a homeowner, even if they do not live in the home and were not present at the time of the attack, assume responsibility.

“If I own vacation property and allow family members to use the property for a week,” Justice David Prosser wondered, “am I liable?”

The dog bite occurred in 2008 in Larsen. Julie Augsburger, a friend of the residents, Janet and Edward Veith, was walking into a fenced area toward a barn when several dogs attacked her.

In 2010, Augsburger filed suit against the Veiths and Janet Veith’s father, George Kontos. Kontos owned the property and let his daughter, her family and the dogs live in the house for free.

Kontos sought to be dismissed from the case, claiming he was not the dogs’ owner. But Fond du Lac County Circuit Judge Gary Sharpe, who heard the Winnebago County case, granted Augsburger summary judgment for her claims against Kontos.

The Wisconsin Court of Appeals affirmed Sharpe’s decision 2-1 in August 2013, saying that Kontos’ decision to let his daughter’s family and their dogs live in the house constituted “harboring” the dogs under state law. “Harboring” is included in state law as a definition of an “owner” is defined as giving shelter or lodging to a dog.

Court of Appeals Judge Paul Reilly disagreed, likening the relationship between Kontos and his daughter’s family to a landlord-tenant relationship. In that case, a landlord would be shielded from liability.

That relationship formed the basis for attorney Jarrod Papendorf’s position during Thursday’s oral arguments. Papendorf, an attorney with Menn Law Firm Ltd., Appleton, told the justices that Kontos should be shielded from what happened since Kontos and his family were in a landlord-tenant relationship.

He also argued the Veiths had control of the dogs, not Kontos. He made note of one time where Kontos told a dog to “shut up,” but said that does not constitute having control of the dog.

“I don’t believe that is the kind of care, custody or control that is necessary,” Papendorf said.

But Augsburger’s attorney, Susan Tyndall, during her response, said case law makes it clear that Kontos was “harboring” the dogs by giving them a permanent home. Even if he was not the one who took care of them on a day-to-day basis, giving them a long-term home was enough to make him liable for the dog bite.

Tyndall, an attorney with Habush, Habush & Rottier SC, Madison, also differentiated the landlord-tenant relationship by pointing out that, in this case, no money was exchanged and there was no written agreement.

“This is a father who wants his daughter to come live nearby,” Tyndall said.

But the justices pressed her with other scenarios, such as if a dog bite happened at a vacation home or if the Veiths were renting property for free that was not owned by a family member. Tyndall stressed that the permanency of the home was what made this different, as well as the fact that Kontos consented to the dogs living there.

“For three of the dogs, this was the only home they ever had,” Tyndall said.

The court is expected to hand down its decision in the coming months. The underlying lawsuit is still pending, as Thursday’s oral arguments only dealt with Kontos’ liability.


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