Malone by Bangert v. Fons

• Decision Date: 17 March 1998
• Docket Number: No. 96-3326,96-3326
• Citation: 580 N.W.2d 697,217 Wis.2d 746
• Parties: Sarah MALONE, by her Guardian ad Litem, Lisa A. Bangert, Laurie Malone and Todd Malone, Plaintiffs-Appellants, d v. Joseph FONS and Frankenmuth Mutual Insurance Company, Defendants-Respondents, Barbara Garner, Terrance Garner, and ABC Insurance Company, Defendants.
• Court: Wisconsin Court of Appeals

Page 697

580 N.W.2d 697

217 Wis.2d 746

Sarah MALONE, by her Guardian ad Litem, Lisa A. Bangert Laurie Malone and Todd Malone Plaintiffs-Appellants, ^d v. Joseph FONS and Frankenmuth Mutual Insurance Company Defendants-Respondents Barbara Garner, Terrance Garner, and ABC Insurance Company, Defendants.

No. 96-3326.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 7, 1998.

Opinion Released March 17, 1998.

Opinion Filed March 17, 1998.

On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Hope K. Olson and Lisa A. Bangert of Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., of Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of G. George Lawrence and Steven W. Keane of Hinshaw & Culbertson, of Milwaukee.

Before WEDEMEYER, P.J., and FINE and CURLEY, JJ.

CURLEY, Judge.

Sarah Malone, by her guardian ad litem, and her parents, Laurie and Todd Malone (collectively, "the Malones"), appeal from summary judgment entered in favor of the respondents which dismissed all their causes of action against Joseph Fons and his insurance company. The causes of action were brought against Fons because a dog owned by his tenant bit Sarah Malone. The Malones contend the trial court erred because: Fons's conduct fell within the parameters of a claim for common law negligence; Fons was a "harborer" of his tenant's dog, as that term is defined in § 174.001, STATS., and was subject to the double damages provision found in § 174.02(1)(b), STATS., because Fons had notice that the dog previously injured a person; and Sarah Malone, the dog-bite victim, was a third-party beneficiary of either Fons's contract, requiring him to provide liability insurance to his tenant, or of his misrepresentation to the tenant that her rent payment included a sum for liability insurance for her. Because we conclude that the holding enunciated in Gonzales v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907 (1975), which held that a landlord is not an insurer for the acts of his tenant's dog in a common law negligence claim, controls; that Fons does not qualify as a "harborer" for § 174.001 purposes; that there was no contract to provide Garner with liability insurance, and that the Malones's third-party beneficiary of a "misrepresentation" theory is insufficiently developed, we affirm.

I. BACKGROUND.

Sarah Malone was eight years old on March 22, 1994, when she was bitten by a Rottweiler belonging to Barbara Garner. As a result of the bite, she sustained serious injury. Garner rented her single family home from Fons; however, Sarah was not bitten on this property. She was in a driveway adjacent to the Garner residence when the dog broke free of the leash being held by one of Barbara Garner's children, mauling Sarah. Although disputed by Fons, but considered true by the trial court for summary judgment purposes, the Malones also claimed that the dog had previously broken free of his leash, run across the street and placed his jaws around the arm of another young child. Further, the Malones claimed, again disputed by Fons, but accepted as true by the trial court, that the father of the child involved in this first incident related the occurrence to Fons and complained about the dog. As further proof of Fons's negligence, the Malones submitted a rental agreement between Fons and Garner which prohibited pets, which Fons failed to enforce. With respect to their third-party beneficiary claim, the Malones assert that Fons either contracted with Garner to provide her with liability insurance, or, in the alternative, that Fons misrepresented to her that he would be providing this type of insurance when originally renting her the property.

The Malones's original complaint named only Garner, the owner of the dog, as a defendant. Later, the complaint was amended twice to include Fons, and his insurer, as defendants. The second amended complaint alleged claims of common law negligence and strict liability under § 174.02, STATS., against both Garner and Fons. The Malones sought damages through their third-party beneficiary claims from Fons only. Fons brought a summary judgment motion which the trial court granted, finding that Fons owed no duty to Sarah Malone as a matter of law and dismissing all of the Malones's claims against Fons and his insurer.

II. ANALYSIS.

Our review of a trial court's grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). We use the same methodology as the trial court. Id. That methodology has been described in many cases, see, e.g., Grams v. Boss, 97 Wis.2d 332, 338-39, 294 N.W.2d 473, 476-77 (1980), and need not be repeated here. Summary judgment must be granted if the evidentiary material demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." RULE 802.08(2), STATS.

A. Common law negligence claim.

The Malones contend that Fons, as the landlord of the dog's owner, was liable under common law negligence for injuries sustained from the dog bite because he had a "no pets" rule which he failed to enforce, he knew of the dog's existence, and he had been notified of an earlier incident where the dog exhibited mischievous behavior. The trial court ruled that Gonzales v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907 (1975), prevents the Malones from recovering from Fons on their common law negligence theory. In Gonzales, a young child wandered onto a neighboring tenant's property and was attacked and bitten in the head by the tenant's basset hound. The plaintiffs sought to impose liability on both the tenant and the landlord under a claim of maintaining an attractive nuisance. Id. at 155, 227 N.W.2d at 909. The supreme court, reviewing only the claim against the landlord, held that the attractive nuisance doctrine was unavailable to the plaintiffs. Id. at 157, 227 N.W.2d at 909. The dissenting minority, however, stated that it would not reverse because the complaint, liberally construed, alleged a common law negligence claim against the landlord. In response, the Gonzales majority stated:

Although not argued by the parties, a minority of the court would hold the complaint sufficient to state a cause of action against the landowner Wilkinson upon the basis of common-law negligence. The majority does not agree.

In examining the complaint we find no allegation that James Wilkinson was either the owner or the keeper of the dog, nor is it alleged that he in any way had any dominion over the dog. There is an allegation that he knew his tenant, Ray Prueher, maintained a vicious dog on the premises but the law does not require him, as the owner of the building, to be an insurer for the acts of his tenant. Under the allegations of this complaint, we hold that the ownership and control of the premises created no duty on the part of the owner of the premises to the plaintiffs.

Id. at 158, 227 N.W.2d at 910.

The Malones argue that the trial court erred in finding this statement dispositive of the case because, in their view, the language in Gonzales addressing the common law negligence claim was purely dicta as it was unnecessary to the issue presented in the case. Further, if this court concludes the language from Gonzales is a holding, rather than dicta, the Malones argue that more recent cases appear to blur the efficacy of the Gonzales ruling. They cite Pagelsdorf v. Safeco Ins. Co. of America, 91 Wis.2d 734, 284 N.W.2d 55 (1979), and Pattermann v. Pattermann, 173 Wis.2d 143, 496 N.W.2d 613 (Ct.App.1992), in support of this argument.

We conclude that: (1) the relevant statements in Gonzales were not a dicta, but rather, expressed the court's holding; (2) according to the plain language of Gonzales, Fons is not liable, on common law negligence grounds, for the bite which Sarah received from Fons's tenant's dog; and (3) neither Pagelsdorf nor Pattermann have modified Gonzales's holding as it relates to the facts of this particular case.

1. Gonzales--dicta or holding?

As the Malones point out, the complaint in the Gonzales case concerned an attractive nuisance claim, not a common law negligence claim. See Gonzales, 68 Wis.2d at 155-57, 227 N.W.2d at 909. The supreme court, however, in response to the dissent, went on to discuss, sua sponte, whether the facts set forth a cause of action in common law negligence. See id. at 158, 227 N.W.2d at 910. They determined that they did not. See id. The Malones claim that this determination is dicta. We disagree.

"Dicta" is language which is broader than necessary to determine an issue. See State ex rel. Schultz v. Bruendl, 168 Wis.2d 101, 112, 483 N.W.2d 238, 241 (Ct.App.1992). However, "[w]hen an appellate court intentionally takes up, discusses and decides a question germane to a controversy, such a decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision." State v. Taylor, 205 Wis.2d 664, 670, 556 N.W.2d 779, 782 (Ct.App.1996). Applying that test, we determine that the language in Gonzales pertaining to its ruling on the common-law negligence is not dicta, but rather, a holding. We base this on our reading of Gonzales where, we note, the majority intentionally took up, discussed and decided the question of whether the defendant-landlord could be liable on a common-law negligence theory. That question was germane to the controversy because, had the majority adopted the minority position, reversal would not have been necessary. Thus, the Gonzales ruling on common law negligence is not dicta.

2. Fons is not liable for common-law negligence under Gonzales.

We note that the facts of Gonzales are strikingly similar to the facts in the instant case. As in this case, the landlord in Gonzales was sued after a tenant's dog bit a child who lived nearby. Here, as in Gonzales, the landlord was neither the owner nor the keeper...