Hill v. Sacka

• Decision Date: 06 May 2003
• Docket Number: Docket No. 227715.
• Citation: 256 Mich. App. 443,666 N.W.2d 282
• Parties: Thomas HILL, Individually and as Next Friend of Kyle Hill, a Minor, Plaintiff-Appellee-Cross-Appellant, and Blue Cross & Blue Shield of Michigan, Intervening Plaintiff, v. Michael SACKA and Kelly Sacka, Defendants-Appellants-Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

666 N.W.2d 282

256 Mich. App. 443

Thomas HILL, Individually and as Next Friend of Kyle Hill, a Minor, Plaintiff-Appellee-Cross-Appellant, and Blue Cross & Blue Shield of Michigan, Intervening Plaintiff, v. Michael SACKA and Kelly Sacka, Defendants-Appellants-Cross-Appellees.

Docket No. 227715.

Court of Appeals of Michigan.

Submitted October 3, 2002, at Detroit.

Decided May 6, 2003, at 9:00 a.m.

Released for Publication July 1, 2003.

Levine, Benjamin, Tushman, Bratt, Jerris & Stein, P.C. (by Cheryl J. Auger) (Sommers, Schwartz, Silver & Schwartz, P.C., by Patrick Burkett, of counsel), Southfield, Southfield, for the plaintiff.

Bowen, Radabaugh, Milton & Brown, P.C. (by Lisa T. Milton), Troy, for the defendants.

Before: MURPHY, P.J., and MARKEY and R.S. GRIBBS¹, JJ.

MURPHY, P.J.

Defendants Michael and Kelly Sacka appeal as of right following a jury trial in this dogbite action brought by plaintiff Thomas Hill, who initiated the suit individually and as next friend of his minor son, Kyle Hill. Plaintiff's lawsuit arises out of personal injuries sustained by Kyle Hill caused by defendant's dog while Kyle and his father were visiting defendants' home. The jury awarded Kyle $10,000 in past noneconomic damages and $40,000 in future noneconomic damages, and the judgment entered thereon was in the amount of $29,045 after the verdict was reduced to present value.² Plaintiff cross-appeals the trial court's order denying a motion for additur or, in the alternative, a new trial. The focus of this appeal concerns whether an action pursuant to Michigan's dog-bite statute, M.C.L. § 287.351, is subject to principles regarding allocation of fault under M.C.L. § 600.2957 and M.C.L. § 600.6304. We affirm the judgment.

I. BASIC FACTS and PROCEDURAL HISTORY

In the summer of 1997, two-year-old Kyle Hill was bitten, gnawed, and mauled by defendants' German shepherd. The incident occurred in defendants' yard after Mr. Hill, Kyle, and others went to defendants' home to socialize. Defendants' dog was chained to a tree at the time of the attack. Kyle approached the dog, waving his arms and making noises. Kyle was attacked by the dog when he came within reach of the dog's chain. There was evidence presented that Mr. Hill observed Kyle's actions before the mauling and yelled at Kyle to stop approaching the dog. Mr. Hill finally ran to stop Kyle from proceeding any further; however, it was too late to prevent the attack. By the time Mr. Hill rescued his son from the dog, the dog had bitten Kyle's neck and head. Kyle's injuries required surgery on three different areas of his head and face. The attack resulted in significant scarring.

Plaintiff brought suit under a negligence theory and under the dog-bite statute, seeking future and past economic and noneconomic damages. Along with an answer and affirmative defenses, defendants filed what they titled "notice of at-fault nondefendant," which asserted that Mr. Hill's negligence caused Kyle to be injured by the dog.³ The negligence claim was summarily dismissed pursuant to agreement of the parties. The jury heard and decided the remaining statutory claim. Specifically, the jury found that Kyle was injured by a dog bite, that damages were sustained, that the biting was without provocation, that Mr. Hill suffered no economic damages, that Kyle suffered past noneconomic damages and will suffer future noneconomic damages, and that Mr. Hill was seventy-five percent negligent, which negligence was a proximate cause of Kyle's injuries. Defendants requested that the verdict be reduced in light of the jury's finding that Mr. Hill was seventy-five percent at fault. The trial court refused to do so, ruling that the damage award was for Kyle, not Mr. Hill. The trial court reasoned that because Mr. Hill, individually, did not receive any damages on his claim, there was nothing to reduce because of his negligence.

II. ANALYSIS

A. Overview of Appellate Arguments

On appeal, defendants argue that M.C.L. § 600.2957 and M.C.L. § 600.6304, which concern allocation of fault, are applicable in actions brought pursuant to the dog-bite statute. Therefore, defendants argue that in light of the jury's finding that Mr. Hill was seventy-five percent at fault, the judgment should have been reduced accordingly. Defendants further argue that the trial court erred with respect to numerous jury instructions that improperly incorporated negligence principles. Plaintiff's cross-appeal involves a challenge to the trial court's refusal to increase the amount of the damage award (additur), or grant a new trial, where the jury awarded future noneconomic damages only for the years 2013 through 2016.

B. The Dog-Bite Statute and Allocation of Fault

Standard of Review

Whether allocation of fault under M.C.L. § 600.2957 and M.C.L. § 600.6304 is to be applied in an action brought pursuant to the dog-bite statute, M.C.L. § 287.351, concerns an issue of statutory construction, which is a question of law that this Court reviews de novo. In re RFF, 242 Mich.App. 188, 198, 617 N.W.2d 745 (2000).

Principles of Statutory Construction

In Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 63, 642 N.W.2d 663 (2002), our Supreme Court, reviewing principles of statutory construction, stated:

An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. To do so, we begin with an examination of the language of the statute. If the statute's language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. [Citations omitted.]

We presume that every word in a statute has some meaning, and this Court should avoid any construction that would render any part of a statute surplusage or nugatory. Karpinski v. St. John Hosp-Macomb Ctr. Corp., 238 Mich.App. 539, 543, 606 N.W.2d 45 (1999). Every word or phrase contained in a statute should be accorded its plain and ordinary meaning. Slater v. Ann Arbor Pub. Schools Bd. of Ed., 250 Mich.App. 419, 428-429, 648 N.W.2d 205 (2002).

Relevant Statutes and Discussion

We begin our analysis by reviewing the dog-bite statute and case law interpreting the statute. MCL 287.351 provides, in pertinent part:

(1) 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.

The dog-bite statute places absolute liability on the dog owner, except where the dog bites after having been provoked. Nicholes v. Lorenz, 396 Mich. 53, 59-60, 237 N.W.2d 468 (1976); Bradacs v. Jiacobone, 244 Mich.App. 263, 267, 625 N.W.2d 108 (2001); Thelen v. Thelen, 174 Mich.App. 380, 385-386, 435 N.W.2d 495 (1989); Veal v. Spencer, 53 Mich.App. 560, 563, 220 N.W.2d 158 (1974). Absolute liability equates to liability without fault. Dooms v. Stewart Bolling & Co., 68 Mich.App. 5, 14 n. 5, 241 N.W.2d 738 (1976).

In Nicholes, supra at 59-60, 237 N.W.2d 468, the Michigan Supreme Court stated:

To provide redress for dog-bite victims, the Legislature by statute retained the common-law remedy but in addition enacted the statute under which this action is brought. It creates an almost absolute liability. However, the Legislature excepted the consequences which might reasonably result from provoking an animal.

In the present statute, the only facts necessary to sustain plaintiff's case are (1) that the dog bit the girl (agreed) and (2) the biting was "without provocation."

* * *

All agree that the threshold question for the jury was whether stepping on the dog under the circumstances described by witnesses to the biting constituted provocation. Nothing else had to be proved and nothing else was relevant....

A panel of this Court in Thelen, supra at 386, 435 N.W.2d 495, noted that the Legislature intended "`provocation'" to be "the only defense" to an action brought pursuant to M.C.L. § 287.351. Contributory negligence was not a defense to an action maintained under the dog-bite statute, except as the negligence might bear on the issue of provocation. Veal, supra at 566, 220 N.W.2d 158; Nicholes v. Lorenz, 49 Mich.App. 86, 88, 211 N.W.2d 550 (1973), aff'd Nicholes, supra at 396 Mich. 53, 237 N.W.2d 468.

Our jurisprudence has abandoned the doctrine of contributory negligence in favor of comparative negligence. See Placek v. Sterling Hts., 405 Mich. 638, 650, 275 N.W.2d 511 (1979). We find that under a clear reading of the dog-bite statute, comparative-negligence principles are equally inapplicable. In Dep't of Transportation v. Christensen, 229 Mich.App. 417, 418-419, 581 N.W.2d 807 (1998), William and Adele Farmer were injured when Eldon Christensen's truck hit an overpass and knocked a gravel hopper off the truck, which then proceeded to land on the highway, where it was struck by the Farmers' vehicle. In its analysis, this Court interpreted M.C.L. § 257.719(1), which requires a vehicle not to exceed a height of thirteen feet, six inches, and which holds the owner of a vehicle liable for all damages resulting from a collision with a lawfully established bridge or viaduct that is caused by the height of the vehicle regardless of any signage indicating the clearance of the bridge or viaduct. Christensen, supra at 419, 581 N.W.2d 807.

The Christensen panel first found that the statute establishes absolute liability for all damages where there is a collision with an overpass caused by the unlawful height of the vehicle. Id. at 421, 581 N.W.2d 807. This Court then held that the defenses of comparative...