Bradacs v. Jiacobone

• Citation: 625 N.W.2d 108,244 Mich. App. 263
• Decision Date: 22 March 2001
• Docket Number: Docket No. 215055.
• Parties: Stephanie BRADACS, Plaintiff-Appellant, v. James JIACOBONE and Barbara Jiacobone, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

625 N.W.2d 108

244 Mich. App. 263

Stephanie BRADACS, Plaintiff-Appellant, v. James JIACOBONE and Barbara Jiacobone, Defendants-Appellees.

Docket No. 215055.

Court of Appeals of Michigan.

Submitted November 8, 2000, at Detroit.

Decided January 9, 2001, at 9:00 a.m.

Released for Publication March 22, 2001.

Kerr, Russell and Weber, P.L.C. (by Edward C. Cutlip, Jr., and Joseph K. Grekin), Detroit, for the plaintiff.

Michael F. Condit, Bloomfield Hills, for the defendants.

Before GRIBBS, P.J., and MICHAEL J. KELLY and SAWYER, JJ.

MICHAEL J. KELLY, J.

In this dog-bite case, plaintiff, Stephanie Bradacs, appeals as of right from a judgment of no cause of action and dismissal entered on August 26, 1998. The order was entered pursuant to a jury verdict in favor of defendants, James Jiacobone and Barbara Jiacobone. On appeal, plaintiff contends that the trial court erred in its interpretation of the Michigan dog-bite statute, M.C.L. § 287.351; MSA 12.544. Specifically, plaintiff contends that provocation under the statute refers to intentional acts of provocation only, not to unintentional acts. Because we conclude that plaintiff's conduct was insufficient to constitute provocation under the dog-bite statute, we reverse and remand for a new trial.

The pertinent facts are straightforward and essentially not in dispute. On April 6, 1990, plaintiff, then twelve years old, and defendants' daughter, Julie Jiacobone, were playing in the backyard of defendants' home. At some point, Julie decided to feed the family dog, a sixty-five-pound, black Labrador retriever named Bear. She brought Bear's food outside and set it on the ground near the back door. Julie then returned to the house to get Bear some water. Plaintiff stood, juggling a football, approximately six inches from Bear as he began to eat. She then accidentally dropped the football and it fell to the ground. It was undisputed that plaintiff did not drop the football near Bear or his food. As plaintiff bent down to retrieve the football, Bear bit plaintiff's right leg. Plaintiff was transported to the hospital by Barbara Jiacobone and Julie. Doctors used six stitches to close plaintiff's leg wound. Eventually, plaintiff's wound healed and she was able to resume her regular athletic activities, but two scars remained on her right leg.

After plaintiff turned eighteen, she filed her complaint in this matter, alleging that defendants were strictly liable for the injuries inflicted by Bear pursuant to the Michigan dog-bite statute, M.C.L. § 287.351; MSA 12.544.¹ At trial, plaintiff testified that Bear never behaved aggressively toward her before the incident in question and that he did not growl at her before he bit her.² The only contested issue at trial, other than damages, was provocation.³ Defendants' position at trial was that plaintiff could not prevail under the dog-bite statute because she unintentionally provoked Bear. Plaintiff argued that defendants could escape liability only if she intentionally provoked Bear.⁴ It was plaintiff's position that unintentional acts could not constitute sufficient provocation to relieve defendants from liability under the statute.

In light of this dispute, a controversy arose over the jury instructions. The Standard Jury Instruction to be given in a case brought under the dog-bite statute, SJI2d 80.01, contained no definition of provocation.⁵ Pursuant to defendants' request, and over plaintiff's objection, the trial court instructed the jury that provocation under the statute was not limited to intentional acts but also included unintentional acts.

After being instructed that provocation under the dog-bite statute included unintentional acts sufficient to provoke a dog to bite, the jury returned a verdict of no cause of action on plaintiff's statutory dog-bite claim. Subsequently, plaintiff filed a motion for judgment notwithstanding the verdict or a new trial. The trial court denied the motion, ruling that the evidence was sufficient to support the jury's finding that the dog was provoked by plaintiff, even if by an unintentional act.

On appeal, we must determine whether there was sufficient evidence of provocation in this case to relieve defendants of liability under the Michigan dog-bite statute.

The Michigan dog-bite statute, M.C.L. § 287.351; MSA 12.544, provides in pertinent part as follows:

If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. [Emphasis supplied.]

The dog-bite statute creates an almost absolute liability. Nicholes v. Lorenz, 396 Mich. 53, 59, 237 N.W.2d 468 (1976). However, "the Legislature excepted the consequences which might reasonably result from provoking an animal." Id. at 59-60, 237 N.W.2d 468. In other words, the dog-bite statute imposes liability on an owner of a dog that bites without provocation. If the plaintiff provokes the dog, the dog owner is not liable for the damages that result. Id. The question then becomes, what constitutes provocation.

The trial court apparently, though tacitly, relying on Palloni v. Smith, 167 Mich.App. 393, 421 N.W.2d 699 (1988), concluded that unintentional acts could constitute sufficient provocation under the dog-bite statute. In Palloni, the plaintiff's two-year-old son, Timothy, was bitten in the face by the defendant's cocker spaniel after he tried to hug the dog. The plaintiff brought suit against the defendant. The trial court instructed the jury that, because no other elements of the dog-bite statute had been contested, the sole factual issue was whether the attack was without provocation and further instructed the jury that the plaintiff had the burden of proof on the question of provocation. Id. at 396, 421 N.W.2d 699. The plaintiff's attorney conceded that, if the jury found the attempted hug to be provocative, the plaintiff could recover no damages. The jury returned a verdict of no cause of action. Subsequently, the trial court granted the plaintiff's motion for a new trial on the ground that the verdict was against the great weight of the evidence. The defendant then appealed to this Court. This Court, finding that "a person who does not intend to provoke a dog nevertheless can do things which are sufficiently provocative to relieve a dog owner of liability under the statute" and that an unintentional act could constitute provocation under the dog-bite statute, concluded that there was competent evidence to support the jury's verdict and reversed the trial court's order granting the plaintiff's motion for a new trial. Id. Specifically, this Court opined:

Although the plaintiff claims that Timothy meant only to hug the dog, an unintentional act may constitute provocation within the meaning of Michigan's dog-bite statute. Expressed differently, since that statute imposes liability on dog owners without regard to fault, the defense of provocation must be construed without concern for fault on the part of the person committing the provocation. The focus must be on the injured party's act, not on his intent, and whether that act was sufficient to provoke the dog's attack. A provocation defense should not be precluded simply because the plaintiff did not intend to provoke the dog. [Id. at 398-399, 421 N.W.2d 699.]

Any reliance on Palloni in this case, however, was misplaced. Palloni was peremptorily reversed by order of the Michigan Supreme Court. See Palloni v. Smith, 431 Mich. 871, 429 N.W.2d 593 (1988).⁶ Therefore, it has no precedential value in this jurisdiction. Mitchell v. General Motors Acceptance Corp., 176 Mich.App. 23, 34, 439 N.W.2d 261 (1989). Although the Supreme Court's order in Palloni indicated only that the Court "perceive[d] no abuse of discretion on the part of the trial judge in determining that the verdict in this case was contrary to the great weight of the evidence," Palloni, supra, 431 Mich. 871, 429 N.W.2d 593, we think it is fair to infer from this order that the Supreme Court disagreed with this Court's conclusion that an unintentional act could constitute provocation under the dog-bite statute. However, we acknowledge that the question of what acts constitute provocation under the dog-bite statute has not been settled in this state. In any event, resolution of the question whether an unintentional act can constitute provocation under the dog-bite statute is not necessary to a disposition of this matter. Assuming that an unintentional act may constitute provocation under certain circumstances, we conclude that plaintiff's conduct in this case did not. constitute provocation sufficient to relieve defendants of liability under the statute. Our conclusion is bolstered by decisions reached in other jurisdictions.

In Grams v. Howard's OK Hardware Co., 446 N.W.2d 687 (Minn.App., 1989), the Minnesota Court of Appeals addressed the provocation issue. In that case, Leah Grams, then twenty-two months old, was bitten by a dog owned by Charles Howard while she was inside a hardware store owned by Howard's father. Id. at 688. Howard had given Leah permission to pet the dog but, when Leah put her arms around the dog's neck, the dog bit her on the face. Id. at 688-689. According to evidence at trial, the dog suffered from hip dysplasia, which may have contributed to the dog's aggression. Id. at 688-690. Leah's complaint was brought pursuant to Minnesota's dog-bite statute that is similar to M.C.L. § 287.351; MSA 12.544. Grams, supra at 689. The trial court instructed the jury that provocation under the statute could be intentional or unintentional and defined it as an act "`which excites, stimulates, irritates or arouses.'" Id. The jury found that Leah provoked the dog and the trial court ordered judgment in favor of Howard. Id. The ...