Hiner v. Mojica
| Decision Date | 20 July 2006 |
| Docket Number | Docket No. 267521. |
| Citation | 722 N.W.2d 914,271 Mich. App. 604 |
| Parties | Von R. HINER, Plaintiff-Appellant, v. Julissa MOJICA, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Mihelich & Kavanaugh, P.L.C. (by Michael P. Kavanaugh and Mark A. Vrana), Eastpointe, for the plaintiff.
Merry, Farnen & Ryan, P.C. (by Michael T. Ryan and Stephanie L. Nawrocki), St. Clair Shores, for the defendant.
Before: JANSEN, P.J., and MURPHY and FORT HOOD, JJ.
In this personal-injury action, plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendant. We affirm in part, reverse in part, and remand for further proceedings.
Plaintiff and his partner Darrell Meece worked for a subcontractor of Comcast, a local cable service provider. Meece went to defendant's home in late February or early March 2004 to service defendant's cable equipment. Plaintiff did not accompany Meece on this initial service call. Meece testified during his deposition that upon arriving at defendant's home, he immediately noticed that defendant's dog was "[v]ery aggressive." Meece testified that as he pulled his truck into defendant's driveway, the dog came up to his driver-side door and prevented him from exiting the vehicle. Meece stated that he was forced to call defendant from his truck and ask her to come outside to restrain the dog.
On the day of the incident underlying this case, Meece and plaintiff went to defendant's home for a follow-up service call. Meece and plaintiff went to defendant's front door, but did not see defendant's dog. They entered defendant's home and began to examine defendant's cable equipment. Meece and plaintiff installed a new cable converter and told defendant that it would take approximately 45 minutes for the necessary information to download. The record indicates that Meece and plaintiff then left for another service call, but told defendant that they would call her later that day to check whether the new converter was working properly.
When Meece and plaintiff called defendant later that day, they discovered that the new converter was not working. Meece and plaintiff returned to defendant's home. Both men testified that upon returning to defendant's home, the dog was in the front yard, barking and growling. The record showed that an enclosed breezeway, connected to the side of defendant's home and garage, ran between defendant's front yard and backyard. According to Meece and plaintiff, the dog was tied to a long leash that ran from the back of defendant's house through the breezeway, out the front door of the breezeway, and into the front yard. Plaintiff testified that the front door of the breezeway had been closed on the leash, restricting the dog's movement to the area immediately surrounding the door. Nonetheless, plaintiff testified that the dog was nearly able to reach him and Meece as they approached defendant's front porch. Meece testified that the dog repeatedly jumped and lunged toward the porch, and was "constant[ly] barking and snarling."
Upon reaching the porch, Meece and plaintiff entered defendant's home. After further diagnostic tests of the cable equipment, Meece and plaintiff determined that defendant's outside cable line was in need of replacement. Plaintiff testified that he asked defendant to make sure that the dog could not get into the backyard because he and Meece needed to access the backyard and replace the cable line. Meece testified that he told defendant, "the dog doesn't like us," and that defendant nodded in agreement with the remark.
Meece and plaintiff went outside to get their tools from the truck. According to plaintiff, the dog was still in the front yard at that time. Meece and defendant testified that the back door of the breezeway was propped open.1 However, because the front door of the breezeway was closed, plaintiff did not believe that the dog would be able to get into the backyard. Meece and plaintiff walked around the side of defendant's garage and into the backyard, where they examined defendant's cable line and cable box. Meece and plaintiff then began walking back toward the front yard to get additional supplies from their truck. Plaintiff testified that as he and Meece rounded the side of defendant's garage, he could see into the front yard, where the dog was pulling on its leash. Plaintiff testified that the front door of the breezeway then "shot open," allowing the dog to enter the breezeway and gain access to the backyard through the breezeway's backdoor. Both Meece and plaintiff testified that as they were walking toward their truck, the dog came at them from behind, charging toward them from the backyard. Because they did not know the exact length of the dog's leash, Meece and plaintiff became concerned that the dog might be able to reach them.
Plaintiff testified that he entered "a panic state," and that he and Meece began to run. He testified that Meece ran toward the front yard while he ran toward the side property line. Meece testified that as he was running, he briefly felt the dog come into contact with his toolbelt. Plaintiff successfully eluded the dog, but tripped or slipped on the soft, muddy ground. Plaintiff could not stand following the incident, and Meece helped him back to the truck. Plaintiff suffered a ruptured Achilles tendon, which required surgery, and other injuries to his right leg. Plaintiff brought this action asserting claims of common-law strict liability and negligence.2 The trial court granted summary disposition under MCR 2.116(C)(10), ruling that plaintiff had failed to establish sufficient record support for his claims.
We review de novo a trial court's decision on a motion for summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff's claims. Id. at 120, 597 N.W.2d 817. We consider the affidavits, pleadings, depositions, admissions, and other admissible evidence in a light most favorable to the party opposing the motion. MCR 2.116(G)(5); Maiden, supra at 120, 597 N.W.2d 817. Summary disposition is appropriate under MCR 2.116(C)(10) if the proffered evidence fails to establish a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds could differ. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).
Michigan's Dog Law, MCL 287.261 et seq., specifically preserves "the common law liability of the owner of a dog for damages committed by it." MCL 287.288. Michigan has long recognized a strict-liability cause of action against possessors of certain domestic animals for harm caused by those animals, regardless of fault. Trager v. Thor, 445 Mich. 95, 99, 516 N.W.2d 69 (1994). Michigan also recognizes a cause of action for negligent failure to exercise ordinary care in controlling or restraining a domestic animal. Id. at 104-105, 516 N.W.2d 69; Rickrode v. Wistinghausen, 128 Mich.App. 240, 247, 340 N.W.2d 83 (1983). These two theories of liability may be pleaded in the alternative. Trager, supra at 105, 516 N.W.2d 69.
Under the common law, a dog owner is strictly liable for damage done by the dog only if he or she knows or has reason to know of the dog's vicious nature. Nicholes v. Lorenz, 396 Mich. 53, 59 n. 3, 237 N.W.2d 468 (1976); Szkodzinski v. Griffin, 171 Mich.App. 711, 714, 431 N.W.2d 51 (1988). "Strict liability attaches for harm done by a domestic animal where three elements are present: (1) one is the possessor of the animal, (2) one has scienter of the animal's abnormal dangerous propensities, and (3) the harm results from the dangerous propensity that was known or should have been known." Trager, supra at 99, 516 N.W.2d 69. The theory underlying common-law strict liability is that "[t]he liable party is deemed to have chosen to expose those around him to the abnormal danger posed by the animal he chooses to keep and must, as a consequence, shoulder any costs resulting from that danger." Id. at 100, 516 N.W.2d 69. In order to prevail on a claim of common-law strict liability, "[a] plaintiff need not prove that the owner or custodian knew that his or her domestic animal had already attacked human beings when unprovoked . . . ." Rickrode, supra at 245, 340 N.W.2d 83. Instead, a plaintiff need only prove
that the owner knew or had reason to know that the animal had a dangerous tendency that is unusual and not necessary for the purposes for which such an animal is usually kept. 3 Restatement Torts, 2d, § 509, comment c, p. 16. It is enough for [a] plaintiff to prove that the animal has exhibited a tendency to attack human beings or other animals such that the owner would be apprised of the animal's dangerous character. Sufficient as well is evidence that the animal has exhibited any form of ill temper in the presence of human beings that would apprise a reasonable owner that the animal would attack if uncontrolled. 3 Restatement Torts, 2d, § 509, comment g, pp. 17-18. [Rickrode, supra at 245-246, 340 N.W.2d 83.]
Whether a domestic animal has exhibited ill temper or aggressive behavior sufficient to apprise the owner of an unusually or abnormally violent disposition is generally a question for the finder of fact. See Massengile v. Piper, 294 Mich. 653, 660, 293 N.W. 897 (1940). However, if reasonable minds could not differ, then the question becomes one of law for the court. See Dep't of Transportation v. Christensen, 229 Mich.App. 417, 424, 581 N.W.2d 807 (1998).
Viewed in a light most favorable to plaintiff, the evidence in the instant case tended to establish that defe...
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