Gilbert v. Christiansen

• Decision Date: 14 October 1977
• Docket Number: No. 46636,46636
• Parties: Phyllis Marie GILBERT, as Mother and Natural Guardian of Robin Lee Kendrick, a Minor, and Phyllis Marie Gilbert, Individually, Appellants, v. Russell CHRISTIANSEN, Defendant, Towns Edge Properties, Inc., Respondent.
• Court: Minnesota Supreme Court

Page 896

259 N.W.2d 896

Phyllis Marie GILBERT, as Mother and Natural Guardian of

Robin Lee Kendrick, a Minor, and Phyllis Marie

Gilbert, Individually, Appellants, v. Russell CHRISTIANSEN, Defendant, Towns Edge Properties, Inc., Respondent.

No. 46636.

Supreme Court of Minnesota.

Oct. 14, 1977.

Syllabus by the Court

Under the circumstances of this case, a corporation that managed an apartment complex was not an "owner" under Minn.St. 347.22 of a tenant's dog that bit another tenant within the confines of the latter's apartment.

Bell, Stapleton & Nolan and Mark M. Nolan, St. Paul, for appellants.

Van Eps & Gilmore and Duane E. Arndt, and Wayne D. Tritbough, Minneapolis, for respondent.

Heard before SHERAN, C. J., and PETERSON and TODD, JJ., and considered and decided by the court en banc.

KELLY, Justice.

Plaintiffs appeal from a judgment for defendant entered on a directed verdict. We affirm.

This is an appeal involving construction of Minn.St. 347.22, the dog-bite statute. The facts are uncontroverted. On February 26, 1974, plaintiff Phyllis Gilbert and her 3-year-old son, Robin Kendrick, were at home in their apartment in Mounds View. A neighbor in the same apartment building, defendant Russell Christiansen, stopped in for a cup of coffee. Accompanying Christiansen was his German shorthaired dog. The dog lay under the kitchen table while coffee was served. Christiansen then left but did not take his dog with him, as Mrs. Gilbert requested. The dog some 15 minutes later bit Robin, causing severe facial lacerations.

Plaintiffs brought an action against Christiansen and Towns Edge Properties, Inc., (Towns Edge) a corporation that managed the apartment complex, alleging defendants' liability both under the common law and Minn.St. 347.22. Christiansen defaulted and judgment was entered against him. At the close of plaintiffs' case, Towns Edge moved for a directed verdict. The court granted the motion, holding that Towns Edge was not liable at common law and that it was not an "owner" of the dog within the meaning of the statute. On this appeal, plaintiffs challenge the court's ruling regarding the statutory liability of Towns Edge.

In 1951 the legislature provided an additional source of liability, apart from the common law, for dog owners. Minn.St. 347.22 provides:

"If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be in any urban area, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term 'owner' includes any person harboring or keeping a dog. The term 'dog' includes both male and female of the canine species." (Italics supplied.)

In Verrett v. Silver, Minn., 244 N.W.2d 147 (1976), we considered the meaning of "owner" and approved the following jury instruction as an accurate statement of the law:

" * * * Harboring or keeping a dog means something more than a meal of mercy to a stray dog or the casual presence of a dog on someone's premises. Harboring means to afford lodging, to shelter or to give refuge to a dog. Keeping a dog, as used in the statute before us, implies more than the mere harboring of the dog for a limited purpose or time. One becomes the keeper of a dog only when he either with or without the owner's permission undertakes to manage, control or care for it as dog owners in general are accustomed to do." Minn., 244 N.W.2d 149.

It is evident from application of this statement to the present case that defendant apartment managers are not harborers or keepers of tenants' dogs, as these terms are used in Minn.St. 347.22. Plaintiffs suggest two factors, however, that purportedly militate for a finding that Towns Edge was the "owner" of the dog.

Initially, plaintiffs contend that Towns Edge had a right to exercise control over the dog and therefore should be responsible for the dog's conduct. The control cited by plaintiffs consisted of rules and regulations promulgated by Towns Edge relating to the care of pets and its right to exclude dogs from the complex. This argument is unpersuasive because the rules and regulations, even if an adequate basis for finding control, were not applicable within a tenant's apartment. Compare Siegel v. 1536-46 St. John's Place Corp., 184 Misc. 1053, 57 N.Y.S.2d 473 (City Ct. 1945) (owner and operator of an apartment house, who possessed prior knowledge of the vicious tendencies of the superintendent's dog, held responsible for the action of the dog in a common area) with Denagy v. Doscher, 40 Misc.2d 643, 243 N.Y.S.2d 575 (Sup.Ct.1963) (complaint insufficient because it failed to allege that the landlord controlled the property where the dog was kept). ¹ Nor is the mere right to exclude dogs a sufficient ground to make Towns Edge an insurer of the conduct of dogs residing in the apartment complex. Other courts have implicitly agreed by failing to find a landlord responsible on that basis alone for a tenant's pet. Denagy v. Doscher, 40 Misc.2d 643, 243 N.Y.S.2d 575 (Sup.Ct.1963); Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962); Harris v. Turner, 1 Wash.App. 1023, 466 P.2d 202 (1970). Accord, Hagenau v. Millard, 182 Wis. 544, 195 N.W. 718 (1923) (employer who provided employee living quarters and also sublet another room of building to employee's husband not keeper of her dog), cited approvingly in Verrett v. Silver, Minn., 244 N.W.2d 147, 149 (1976); Weiss v. Wilkins, 313 A.2d 897 (Del.Super.Ct.1973) (lessor of gas station); Laguttuta v. Chisholm, 65 A.D....