Armstrong v. Milwaukee Mut. Ins. Co.

Decision Date26 June 1996
Docket NumberNo. 93-1918,93-1918
Citation202 Wis.2d 258,549 N.W.2d 723
PartiesCheryl ARMSTRONG, Plaintiff-Respondent-Petitioner, Samaritan Health Plan Insurance Corporation, Plaintiff, v. MILWAUKEE MUTUAL INSURANCE COMPANY, John J. Mack and Ann Mack, Defendants-Appellants.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner there were briefs by Victor C. Harding, Edward E. Robinson and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee and oral argument by Victor C. Harding.

For the defendants-appellants there was a brief by Joseph M. Fasi, II, Susan R. Tyndall and Hinshaw & Culbertson, Milwaukee and oral argument by Susan R. Tyndall.

JANINE P. GESKE, Justice.

John Mack, Ann Mack and Milwaukee Mutual Insurance (the Macks) seek review of a published decision, Armstrong v. Milwaukee Mutual Insurance Co., 191 Wis.2d 562, 530 N.W.2d 12 (Ct.App.1995), in which the court of appeals reversed the judgment entered in Milwaukee Circuit Court awarding Cheryl Armstrong damages for injuries resulting from a dog bite she incurred while employed

                at a dog kennel.  We conclude that a person who is employed to care for a dog within his or her custody and control is a "keeper" of that dog within the statutory definition contained in Wis.Stat. § 174.001(5) (1993-94). 1  We further hold that, in a case such as this where a keeper is injured by the dog and there is no evidence of negligence on the part of the legal owners, a keeper may not recover damages from the legal owners of the dog under the strict liability statute, Wis.Stat. § 174.02(1). 2  Therefore, we affirm the decision of the court of appeals
                

FACTS

On January 7, 1991, John and Ann Mack went on vacation. As they had done previously, the Macks left their Siberian Husky, Mandy, to be boarded and cared for at the Thistlerose Kennels (Thistlerose). As before, they paid a fee for this service. At that time, Cheryl Armstrong (Armstrong) had worked for about a year at the kennels, which are owned by Eleanor Jolly. 3 Armstrong worked part-time at Thistlerose as a general handyperson (cutting trees, fixing kennels, etc.) in addition to performing various duties in relation to caring for the dogs.

The facility has 60 indoor heated kennels, each of which opens onto an outdoor exercise run. At trial, Armstrong testified that the routine for caring for the dogs was the same no matter what shift one worked: letting each dog out into the outside run, cleaning the kennel, changing the water, and returning the dog to its kennel. On the evening of January 9, 1991, Armstrong released Mandy into the outdoor run, changed the water and cleaned the interior kennel. She was bitten while trying to get Mandy to go back inside. The bite itself was not severe but became infected, necessitating hospitalization and several surgeries.

PROCEDURAL HISTORY

Cheryl Armstrong filed a complaint against the Macks and their insurer Milwaukee Mutual Insurance Company, alleging that, as Mandy's owners, the Macks were liable for Armstrong's damages on the grounds of common-law negligence and strict liability pursuant to Wis.Stat. § 174.02(1)(a). The Macks denied any negligence on their part and affirmatively responded that Armstrong's own negligence contributed in whole or in part to her injuries. The circuit court denied the Macks' motion for summary judgment. The case proceeded to trial solely on the strict liability claim as Armstrong conceded that there was no issue concerning the Macks' conduct. The jury returned a verdict finding that Armstrong had been negligent but not causally so and the court entered judgment in Armstrong's favor in the amount of $81,444.67. Following unsuccessful post-verdict motions, the Macks filed an appeal.

The court of appeals reversed the judgment entered by the circuit court based on its conclusion that summary judgment for the defendants had been erroneously denied. The court of appeals held that strict liability under § 174.02 can be shared between the legal owner of a dog and the keeper when

                the dog is [202 Wis.2d 263] placed in a kennel. 4  Therefore, the court reasoned that the Macks were potentially jointly liable for injuries caused by their dog.  However, the court concluded that, because Armstrong failed to present any evidence that the Macks had prior notice of Mandy's "vicious tendencies," there was no genuine issue of material fact and therefore summary judgment should have been granted. 5
                
STANDARD OF REVIEW

The issues in this case have evolved as the claim has proceeded through the courts. At this juncture, the critical questions are: (1) whether an employee of a boarding kennel whose duties include caring for dogs is a "keeper" and therefore "owner" under Wis.Stat. § 174.001(5) and, if so, (2) may such a keeper who is injured while he or she is exercising control over the dog hold the legal owner, against whom no negligence is alleged, strictly liable under Wis.Stat. § 174.02? 6 Resolution of this appeal therefore requires this court to interpret a statute as it applies to a set of facts. This presents a question of law which we approach de novo without deference to the circuit court or the court of appeals. Wyss v. Albee, 193 Wis.2d 101, 109, 532 N.W.2d 444 (1995).

WHO IS A "KEEPER" OF A DOG?

Pursuant to Wis.Stat. § 174.001(5) an "[o]wner includes any person who owns, harbors or keeps a dog." Although the issues before us today are ones of first impression, this court and the Wisconsin court of appeals have had previous occasion to address the definition of "who ... keeps a dog" as that phrase is used in the statute. We note that, since their inception, Wisconsin laws governing liability for damage caused by dogs have defined "owners" as including those who keep dogs. § 2, ch. 383, Laws of 1852.

In Hagenau v. Millard, 182 Wis. 544, 195 N.W. 718 (1924), this court held as a matter of law that the defendant, who owned a building in which he operated a hotel and restaurant, was not a keeper of the dogs owned by his sister-in-law who lived on the premises and worked in the restaurant. We held that a keeper is one who harbors and protects a dog, who treats it as living at his or her house and undertakes to control the animal. Hagenau, 182 Wis. at 547, 195 N.W. 718. The casual presence of dogs will not suffice to transform a person into a keeper; there must be evidence that the person has "furnished them with shelter, protection, or food, or that they exercised control over the dogs." Id., at 547-48, 195 N.W. 718.

This court addressed not only the definition of keeper in Janssen v. Voss, 189 Wis. 222, 207 N.W. 279 (1926), but also the relationship of keepers and legal owners. The A keeper is defined as one "who keeps, one who watches, guards, etc.; one having custody." It is apparent that the keeper of a dog may or may not be the owner of the dog. Where the keeper is not the owner, it may be assumed, as a general proposition, that the dominion or authority of the keeper over the dog is a limited one, subject to be terminated at any time by the owner.... The moment [the owner removes the dog from the custody of the keeper], the dual authority theretofore exercised over the dog by the owner and the keeper is merged in the owner, and at that very moment the keeper's rights and responsibilities concerning the dog are at an end. Id. at 224, 207 N.W. 279 (citations omitted, emphasis added).

                issue in Janssen was whether the mother of the fourteen year-old dog owner "was a keeper of the dog at the time of the injury."  Janssen, 189 Wis. at 223, 207 N.W. 279.   The circumstances surrounding the injury were that the mother had to leave town to attend a funeral and arranged for the dog to be placed at a dog hospital during her absence.  Despite explicit instructions from his mother to leave the dog at the hospital, her son took the dog from the hospital and tied it in the yard of the family's home where he was staying.  Id. at 224, 207 N.W. 279.   We concluded that when the owner-son took physical custody and possession of the dog, he became the legal keeper of the dog, thereby relieving his mother of any [202 Wis.2d 266] responsibility for the dog's conduct under the strict liability statute.   Id. at 225, 207 N.W. 279.   We stated that
                

We held, in Koetting v. Conroy, 223 Wis. 550, 270 N.W. 625 (1936), 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 under Wis.Stat. § 174.02. Koetting, 223 Wis. at 552, 270 N.W. 625. Further, this court noted that, "[o]ne purpose of the statute is to protect domestic animals [and persons] from injury by dogs by whomsoever the dogs are kept or harbored, and to make a person who keeps or harbors a dog responsible for all injuries inflicted by it...." Id. at 555, 270 N.W. 625 (emphasis added).

The court of appeals addressed the issue of who is a keeper in Pattermann v. Pattermann, 173 Wis.2d 143, 496 N.W.2d 613 (Ct.App.1992). There, the court held that a mother who merely allowed her adult son to bring his dog into her home for one half-hour while packing for a family trip was not a keeper or harborer of the dog. Pattermann, 173 Wis.2d at 150-51, 496 N.W.2d 613. The "transient invasion" by the dog was insufficient to bring the mother within the confines of Wis.Stat. § 174.001(5), according to the court, because there was no evidence that the dog lived on the premises, or was fed or in any way cared for by Mrs. Patterman. Id.

Upon review of these cases we conclude that several factors are critical in determining who is a keeper and therefore an owner within the confines of chapter 174; the person in question must exercise some measure of custody, care or control over the dog. See Hagenau, 182 Wis. at 547-48, 195 N.W. 718 (exercise control over, or furnish with shelter, protection or food); Janssen, 189 Wis. at 224, ...

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