Armstrong v. Milwaukee Mut. Ins. Co.

• Decision Date: 07 February 1995
• Docket Number: No. 93-1918,93-1918
• Citation: 191 Wis.2d 562,530 N.W.2d 12
• Parties: Cheryl ARMSTRONG, Plaintiff-Respondent, d Samaritan Health Plan Insurance Corporation, Plaintiff, v. MILWAUKEE MUTUAL INSURANCE COMPANY, John J. Mack and Ann Mack, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 12

530 N.W.2d 12

191 Wis.2d 562

Cheryl ARMSTRONG, Plaintiff-Respondent, ^d Samaritan Health Plan Insurance Corporation, Plaintiff, v. MILWAUKEE MUTUAL INSURANCE COMPANY, John J. Mack and Ann Mack, Defendants-Appellants.

No. 93-1918.

Court of Appeals of Wisconsin.

Submitted on Briefs June 7, 1994.

Opinion Released Feb. 7, 1995.

Opinion Filed Feb. 7, 1995.

For the defendant-appellant the cause was submitted on the briefs of Hinshaw & Culbertson, with Joseph M. Fasi, of Milwaukee.

For the plaintiff-respondent the cause was submitted on the briefs of Warshafsky, Rotter, Tarnoff, Gesler, Reinhardt & Bloch, S.C., with Victor C. Harding, of Milwaukee.

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

SCHUDSON, Judge.

John J. Mack and Ann Mack, and their insurer, Milwaukee Mutual Insurance Co., appeal from the trial court judgment, following a jury trial, awarding Cheryl Armstrong damages resulting from a dog bite she suffered while employed at a dog kennel. They argue that the trial court erred in: (1) denying their motion for summary judgment; and (2) denying their request for a jury question on comparative negligence. They also argue that the evidence was insufficient to support the jury's verdict.

This case presents an issue of first impression: whether, under § 174.02(1)(a), STATS. (the strict-liability dog-bite statute which references § 895.045, STATS. (the contributory negligence statute)), a dog's legal owners can be liable to a kennel employee who was bitten by their dog, in the absence of any evidence of their negligence. We conclude that the trial court correctly determined that the statute allows the potential for both the legal owners and the kennel employee to share strict liability. We also conclude, however, that in this case the trial court erred in denying summary judgment for the dog's legal owners.

I. BACKGROUND

The facts relevant to the issues on appeal are not in dispute. The Macks owned a Siberian Husky named "Mandy." Before going out of town, they placed Mandy at the Thistlerose Kennels, owned by Eleanor Jolly. Cheryl Armstrong was a part-time employee at Thistlerose responsible for various duties, which included bringing dogs inside the kennel building from the outdoor kennel-run areas. On January 9, 1991, as Armstrong was attempting to bring Mandy inside, Mandy bit Armstrong's hand. The bite became infected and produced serious complications requiring numerous surgeries and extensive hospitalization.

Armstrong sued the Macks and their insurer claiming, first, that the dog-bite injuries "were caused by the [Macks'] negligence and carelessness," and, second, that the Macks were strictly liable for the damages under § 174.02, STATS. The Macks denied negligence and asserted the affirmative defense that Armstrong "was herself negligent and contributed to and caused some or all of the alleged injuries." The Macks moved to dismiss the complaint and, in the alternative, for summary judgment. The trial court denied the Macks' summary judgment motion and the matter proceeded to a jury trial. The jury found Armstrong negligent but not causally so. The trial court denied the Macks' motions after verdict and judgment was entered for Armstrong.

II. DISCUSSION

Section 174.02, STATS., in relevant part, states:

(1) LIABILITY FOR INJURY. (a) Without notice. Subject to s. 895.045 [Contributory negligence], the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person.

Under § 174.001(5), STATS., " '[o]wner' includes any person who owns, harbors or keeps a dog." In this case, there was no dispute that the Macks were "owners" under the statute, and that Armstrong, as an employee of the kennel "keeping" Mandy, also was an "owner" under the statute. ¹

The Macks argued on summary judgment, however, that Armstrong's status as the dog's "owner" effectively foreclosed their status as "owners" for purposes of strict liability. They contended that "a cause of action in strict liability does not exist against the owners of a dog when that dog is boarded at a professional kennel for a fee," and that § 174.02, STATS., "does not impose strict liability on someone for simply owning an animal when that person transfers control of the animal to a professional." Armstrong, however, maintained that the Macks' argument was not supported by the language of § 174.02 and that both she and the Macks could be "owners" for purposes of imposing liability.

The trial court denied the Macks' summary judgment motion, stating that under § 174.02, STATS., there could be "dual liability" for the dog's legal owner and the temporary keeper. The court further observed:

Perhaps ... contributory negligence [is] the outlet or relief valve for cases like this in which the claim is, if you give the dog to professional managers, that they ought to be able to take care of themselves and not get injured, that [they] would take enough precautions not to get injured; and, I think that does in a social sense, in a policy sense, provide for some check on the owner's absolute liability, otherwise every groomer who got nipped by a dog could sue every owner that sent the dog in.

The principles of comparative negligence have to apply somehow to assess the conduct of the professional dog groomer or keeper to assess or at least fix some responsibility on their part like for being bitten under the circumstances, so, I think, that balancing is consistent with the statute.

This court reviews decisions on summary judgment de novo, applying the same methodology as the trial court. See § 802.08(2), STATS.; Green Spring Farms v. Kersten, 136 Wis.2d 304, 314-315, 401 N.W.2d 816, 820 (1987). That methodology has been recited frequently and need not be repeated here. Construction of § 174.02, STATS., and its application to a set of facts present a question of law, which we review de novo. Pattermann v. Pattermann, 173 Wis.2d 143, 149-150, 496 N.W.2d 613, 615 (Ct.App.1992). Further, § 174.02 "is in derogation of the common-law and is to be strictly construed." Id. at 150, 496 N.W.2d at 615.

Thus, we first confront the question: when a legal owner places a dog in a kennel, does the dog keeper/"owner's" strict liability replace the legal owner's strict liability under § 174.02, STATS., or is it shared with the legal owner's strict liability? Strictly construing the statute, and accepting the plain and unambiguous definition of "owner," we conclude that strict liability can be shared.

Section 174.02, STATS., "imposes strict liability" on a dog owner "subject only to the defense of comparative negligence." Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis.2d 804, 808, 416 N.W.2d 906, 908 (Ct.App.1987). As noted, " '[o]wner' includes any person who owns, harbors or keeps a dog." Section 174.001(5), STATS. "Keeping" a dog has been defined as "exercising some measure of care, custody or control over the dog." Pattermann, 173 Wis.2d at 149-151 & n. 4, 496 N.W.2d at 615 & n. 4. It is undisputed that Armstrong acted as a temporary "keeper" of the dog and, thus, came within the definition of "owner." The statute offers no basis to say that liability for one "owner" precludes liability for another "owner" as a matter of law. Thus, we agree with the trial court conclusion that the statute does allow the potential for "dual liability" of a legal owner and a keeper/owner. See Janssen v. Voss, 189 Wis. 222, 224, 207 N.W. 279, 280 (1926) (noting legal owner and temporary keeper have "dual authority" over dog).

Having resolved the legal issue, we turn to whether genuine issues of material fact precluded summary judgment. Based on the summary judgment submissions, we conclude that summary judgment should have been granted to the Macks because Armstrong failed to establish a genuine issue of material fact that the Macks were negligent.

Armstrong's brief in opposition to summary judgment asserted, "Prior to the attack, and unbeknownst to Ms. Armstrong, the husky had displayed vicious tendencies by unpredictably growling, barking and jumping at other employees of the kennel.... At no time before the attack had the Macks warned anyone of the husky's tendencies or propensity to attack and bite." The brief further asserted that "[t]he Macks should have known of these vicious tendencies and warned of the dog's propensity to attack and bite people." Armstrong, however, offered no evidence to support these assertions. Her brief opposing summary judgment referred only to the unsworn statement of Eleanor Jolly, attached to an affidavit filed by Armstrong's counsel. The Jolly statement said, in part:

The dog, Mandy, acted tough while she was here according to other employees. She...