Braun v. York Properties, Inc.

• Decision Date: 02 June 1998
• Docket Number: 190956,190771,Docket Nos. 184796
• Citation: 230 Mich.App. 138,583 N.W.2d 503
• Parties: Kathy BRAUN, Thomas Braun and Nicholas J. Braun, Plaintiffs-Appellees, v. YORK PROPERTIES, INC. d/b/a York Management Company, Americana Estates of Casco Partnership d/b/a Americana Estates of Casco Mobile Home Park, Sidney Barbas, Paul Fisher, Bernard Bocknek, David Kahn, Alan Fisher and Nita Tucker, Defendants-Appellants. Kathy BRAUN, Thomas Braun, Nicholas J. Braun and Bryan P. Braun, Plaintiffs-Appellees, v. YORK PROPERTIES, INC. d/b/a York Management Company, Americana Estate of Casco Mobile Home Park, Sidney Barbas, Paul Fisher, Bernard Bocknek, David Kahn, Alan Fisher and Nita Tucker, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 503

583 N.W.2d 503

230 Mich.App. 138

Kathy BRAUN, Thomas Braun and Nicholas J. Braun, Plaintiffs-Appellees, v. YORK PROPERTIES, INC. d/b/a York Management Company,

Americana Estates of Casco Partnership d/b/a Americana

Estates of Casco Mobile Home Park, Sidney Barbas, Paul

Fisher, Bernard Bocknek, David Kahn, Alan Fisher and Nita

Tucker, Defendants-Appellants.

Kathy BRAUN, Thomas Braun, Nicholas J. Braun and Bryan P.

Braun, Plaintiffs-Appellees, v. YORK PROPERTIES, INC. d/b/a York Management Company,

Americana Estate of Casco Mobile Home Park, Sidney Barbas,

Paul Fisher, Bernard Bocknek, David Kahn, Alan Fisher and

Nita Tucker, Defendants-Appellants.

Docket Nos. 184796, 190771, 190956.

Court of Appeals of Michigan.

Submitted Dec. 10, 1997, at Detroit.

Decided June 2, 1998, at 9:05 a.m.

Released for Publication Sept. 10, 1998.

Bator Roualet & Berlin by Nancy J. Roualet and Daniel A. Gwinn, Birmingham, for Plaintiffs-Appellees.

Thomas D. Rinehart, P.C. by Thomas D. Rinehart, Mt. Clemens, Gross, Nemeth & Silverman, P.L.C., by James G. Gross, Mary T. Nemeth and Steven G. Silverman, of Counsel, Detroit, for Defendants-Appellants.

Before SAWYER, P.J., and WAHLS and REILLY, JJ.

REILLY, Judge.

In these consolidated cases, York Properties, Inc., the owners and manager of the mobile-home park at which the underlying events took place (hereinafter defendants) appeal as of right the judgment for plaintiff Nicholas Braun on his negligence claim and the order denying their motion for mediation sanctions against plaintiffs Kathy, Thomas, and Bryan Braun. We vacate the judgment in Docket No. 184796 because defendants did not owe plaintiff Nicholas Braun a duty of care. In Docket Nos. 190771 and 190956, however, we affirm the denial of mediation sanctions.

Plaintiff Nicholas Braun, a twelve-year-old child, was seriously injured when bitten by his neighbors' dog, a Labrador, while playing inside the neighbors' mobile home. Nicholas, along with his mother, father, and brother, commenced this action against his neighbors and defendants, for injuries arising out of the dog bite. Nicholas settled his claims against his neighbors for $100,000. The trial court granted a directed verdict with respect to the claims of plaintiffs Kathy, Thomas, and Bryan Braun. The jury, however, found for Nicholas with respect to his claim against defendants for negligently failing to enforce rules and regulations regarding dogs in the mobile-home park. The court entered judgment for Nicholas in the amount of $50,000 for past noneconomic damages, $100,000 for future medical expenses, and $123,904.95 for future noneconomic damages. The trial court subsequently denied defendants' motions for judgment notwithstanding the verdict, a new trial, and remittitur. The court also denied defendants' motion for mediation sanctions against Kathy, Thomas, and Bryan Braun.

Docket No. 184796

Defendants first argue that the trial court erred in denying their motion for a directed verdict because plaintiff Nicholas Braun failed to show that they owed him a duty of care. We agree. This Court reviews de novo the trial court's decision on a motion for a directed verdict. Berryman v. K mart Corp., 193 Mich.App. 88, 91, 483 N.W.2d 642 (1992). This Court considers the evidence presented at trial in a light most favorable to the nonmoving party to determine whether the plaintiff established a prima facie case. Id. A directed verdict should be granted only if reasonable jurors could not reach different conclusions. Id.

The question presented is whether under the circumstances of this case a landlord who promulgates rules and regulations regarding tenants' dogs owes a third party a duty to use reasonable care to enforce those rules. Generally, the existence of a duty is a question of law for the court to decide, but where certain factual circumstances give rise to a duty, and there are disputed facts, a jury must determine whether those factual circumstances exist. Howe v. Detroit Free Press, Inc., 219 Mich.App. 150, 156, 555 N.W.2d 738 (1996). "[T]he jury decides the question of duty only in the sense that it determines whether the proofs establish the elements of a relationship which the court has already concluded give rise to a duty as a matter of law." Smith v. Allendale Mut. Ins. Co., 410 Mich. 685, 714-715, 303 N.W.2d 702 (1981). This Court has considered a landlord's duty to protect others from attacks by tenants' animals on two occasions, in Szkodzinski v. Griffin, 171 Mich.App. 711, 431 N.W.2d 51 (1988), and Feister v. Bosack, 198 Mich.App. 19, 497 N.W.2d 522 (1993).

In Szkodzinski, the plaintiff sought to recover from a landlord under a local ordinance, a strict liability theory, and the common law for injuries sustained when a tenant's dog attacked him. The plaintiff's local ordinance claim was rejected because the ordinance did not create a cause of action. The strict liability claim was rejected because the Michigan dog-bite statute, M.C.L. § 287.351; M.S.A. § 12.544, applies only to the dog's owner. The landlord was not an "owner" for purposes of the statute because he neither owned, kept, nor controlled the dog. Szkodzinski, supra at 714, 431 N.W.2d 51. Finally, this Court rejected the plaintiff's common-law claim because no factual question existed whether the landlord knew of the dog's vicious nature. The Court remarked that "the only possible way that [the landlord] could be held liable on a common law theory would be if he knew of the dog's vicious nature." Id. at 714, 431 N.W.2d 51.

In Feister, this Court considered the question whether a landlord could be held liable for injuries inflicted by a tenant's dog off the leased premises. The Court held that a landlord had no duty to protect third parties under those circumstances. The Feister Court declined to construe Szkodzinski as establishing a landlord's duty to protect all potential victims from a dog once the landlord learns of the dog's dangerous proclivities. Feister, supra at 23, 497 N.W.2d 522. The Court noted that where the tenant comes into possession of the dog after the premises have been leased, courts in other jurisdictions have held a landlord liable only when he had knowledge of the dog's vicious propensities and had control of the premises or the capability to remove or confine the animal. The Feister Court further noted that other courts have been reluctant to impose liability for attacks that take place off the premises. After reviewing the decisions of other courts, this Court determined that a landlord's power to evict a tenant does not establish "control" over the dog, even if the landlord could have evicted the tenant before the date of the injury. Id. at 25-26, 497 N.W.2d 522. Accordingly, this Court held that a landlord owes "no duty to protect third parties from attacks by his tenants' dog taking place off the leased premises where the dog was acquired after the premises were leased." Id. at 26, 497 N.W.2d 522.

In this case, plaintiff Nicholas Braun admits that neither he, his parents, nor the dog's owners, much less defendants, knew of the dog's dangerous proclivities. Accordingly, Nicholas rightly concedes that he cannot recover under the common-law theory identified in Szkodzinski, supra at 714, 431 N.W.2d 51. See also McCullough v. Bozarth, 232 Neb. 714, 442 N.W.2d 201 (1989) (cases collected). ¹ Nicholas instead argues that by promulgating rules and regulations governing their tenants' possession of dogs, including breed and size restrictions, defendants voluntarily assumed a duty to use reasonable care to enforce their rules to protect third parties from tenants' dogs that do not satisfy the criteria. We reject Nicholas' argument.

Nicholas relies primarily on the Supreme Court of Alaska's decision in Alaskan Village, Inc. v. Smalley, 720 P.2d 945 (Alaska, 1986), to support his assertion of a duty in this case. In Alaskan Village, the plaintiff, a six-year-old child, was bitten by her neighbor's pit bull while playing on a swingset in the neighbor's yard. The plaintiff and her neighbor both lived in defendant's mobile-home park. The defendant inserted a comprehensive set of rules and regulations in its standard lease agreement, including a prohibition on tenants possessing "vicious dogs." On appeal from the judgment for plaintiff, the Alaska court held that the defendant landlord had a duty to exercise reasonable care to enforce its rules and regulations because it undertook the obligation to control vicious dogs in its trailer park. Alaskan Village, supra at 948.

The Alaska court noted that under § 323 of the Second Restatement of Torts a defendant who undertakes to render services owes a duty of care. The court then reviewed seven analytical factors ² to determine whether an actionable duty of care existed under the circumstances presented in Alaskan Village. The court determined that a duty existed, reasoning as follows:

Applying these principles to the instant case, we conclude that Village had a duty to exercise reasonable care to enforce its rules and regulations. (1) There was ample evidence that Village had actual knowledge of prior incidents involving [the neighbor's] dogs, and therefore it was clearly foreseeable that a person such as Smalley might be harmed; (2) Smalley suffered injury; (3) her injuries are closely related to Village's failure to take any action to enforce its rules; (4) Village's blatant disregard of its tenants' safety is morally blameworthy; (5) our policy is to encourage owners to enforce their rules to prevent harm to others lawfully on the premises; (6) the burden on owners of enforcing their own rules is not onerous; and (7) owners may obtain insurance or require tenants who own vicious animals to do so.

Village undertook to control pets on the trailer park premises by the lease provision prohibiting tenants from keeping vicious dogs and requiring [the neighbor] to immediately remove annoying pets. One of the...