Gonzales v. Wilkinson
| Decision Date | 21 April 1975 |
| Docket Number | No. 413,413 |
| Citation | 68 Wis.2d 154,227 N.W.2d 907 |
| Parties | Linda GONZALES et al., Plaintiffs-Respondents, v. James WILKINSON, Defendant-Appellant, Ray Prueher, Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
The order appealed from overruled a demurrer by one of the defendants in a dogbite case.
Kivett & Kasdorf, Milwaukee, for defendant-appellant; Kenton E. Kilmer and Russell M. Ware, Milwaukee, of counsel.
Gerald T. Flynn, Racine, for plaintiffs-respondents.
The victim was a one-and-one-half-year-old child who wandered onto the next door neighbor's property where he was allegedly attacked and bitten on the head by a basset hound. Plaintiffs-respondents are the victim, Claude Anthony Gonzales, suing by his guardian ad litem, and his mother, Linda Gonzales. Defendant-respondent is Ray Prueher, owner of the dog. Defendant-appellant is James Wilkinson, owner of the duplex in which both Prueher and Wilkinson live, and which is next door to the plaintiffs' residence.
The complaint, which seeks to impose liability on defendants under the attractive nuisance doctrine, alleges that Claude Gonzales walked from his yard to the backyard of the duplex next door and was attacked and bitten by the dog. The complaint alleges that the dog had bitten individuals in the past and that this fact was known to defendants at the time of the incident. With respect to defendant Wilkinson, the owner of the duplex, the complaint alleges:
'That the attack and biting to Claude Anthony Gonzales by the Basset Hound named Bub was the direct and proximate result of the negligence of the individual defendant, James Wilkinson, in that the said defendant was negligent as to:
'(a) Allowing a dog of known vicious propensities to be upon premises under his control and maintaining an attractive nuisance in said dog.
'(b) In failing to adequately enclose the yard in which said vicious dog was located so as to prevent unsuspecting minors, and particularly Claude Anthony Gonzales, from entering therein.
'(c) In failing to provide someone to watch over the said vicious dog when the dog was in the yard where the incident occurred.
'(d) In allowing his tenant, the defendant, Ray Prueher, to maintain occupancy rights with respect to the duplex and its grounds while knowing that he maintained a vicious animal.
'(e) In maintaining an artificial condition in said dog which is inherently dangerous to children who don't know its propensities.'
Similarly, as to defendant Prueher, tenant and owner of the dog, the complaint alleges:
'That the attack and biting to Claude Anthony Gonzales by the Basset Hound named Bub was the direct and proximate result of the negligence of the individual defendant, Ray Prueher, in that the said defendant was negligent as to:
'(a) Allowing a dog of known vicious propensities to be upon his premises and under his control and maintaining an attractive nuisance in said dog.
'(b) In failing to adequately enclose the yard in which his vicious dog was located so as to prevent unsuspecting minors, and particularly Claude Anthony Gonzales, from entering therein.
'(b--1) In maintaining an artificial condition in said dog which is inherently dangerous to children who don't know its propensities.
'(c) In failing to provide someone to watch over his said vicious dog when the dog was in the yard where the incident occurred.
'(d) In owning and allowing his dog to be on the grounds while knowing that he maintained a vicious animal.'
The complaint seeks damages totaling $60,000.
Defendant Prueher filed an answer denying the material allegations of the complaint, and asserting an affirmative defense alleging that plaintiffs were contributorily negligent. This appeal does not pertain to defendant Prueher or his answer and affirmative defense.
Defendant Wilkinson demurred to the complaint on the grounds that it failed to state facts sufficient to constitute a cause of action. The trial court overruled the demurrer, and Wilkinson appeals.
The doctrine of attractive nuisance is unavailable to plaintiffs. The doctrine assumes the presence on the premises of an "artificial condition which (is) inherently dangerous to children." 1 A dog cannot qualify. Although such a condition need not be permanently erected upon the land, it must be 'artificially construed.' 2 Thus, in Nechodomu v. Lindstrom (1956), 273 Wis. 313, 77 N.W.2d 707, 78 N.W.2d 417, the court held an injured child could recover under the attractive nuisance doctrine where he had inserted his hand into the moving drum of a mud mixer machine left running and unattended on the defendant's property.
Although the doctrine of attractive nuisance has been shaped to get around the fact...
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Antoniewicz v. Reszcynski
...the question as it may apply to a particular case.' (Pp. 593, 594, 218 N.W.2d p. 133) Ordinarily, as we said in Gonzales v. Wilkinson (1975), 68 Wis.2d 154, 158, 227 N.W.2d 907, we will not consider the abandonment of a traditional rule unless there has been a full trial and full considerat......
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Augsburger v. Homestead Mut. Ins. Co.
...not liable for the actions of their tenants' dogs. Id., ¶ 52 (citing Smaxwell, 274 Wis.2d 278, 682 N.W.2d 923 ; Gonzales v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907 (1975) ; Malone v. Fons, 217 Wis.2d 746, 580 N.W.2d 697 (Ct.App.1998) ). It noted that in traditional landlord-tenant cases, “......
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Matthews v. AMBERWOOD ASSOCIATES LIMITED PARTNERSHIP
...vicious and allowed dog to remain on the leased premises), application to transfer denied,879 S.W.2d 543 (1994); Gonzales v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907, 910 (1975) (landlord, who was not the keeper or owner of the tenant's dog and who had no control over the animal, had no dut......
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Smaxwell v. Bayard
...for the parties' respective arguments, we briefly summarize the principal cases upon which they rely. ¶ 14. In Gonzales v. Wilkinson, 68 Wis. 2d 154, 155, 227 N.W.2d 907 (1975), the plaintiff, a one and a half-year-old child, wandered from home onto an adjacent yard where a duplex was locat......