Nelson v. Hansen
| Citation | 102 N.W.2d 251,10 Wis.2d 107 |
| Parties | Robert S. NELSON and Robert S. Nelson, Jr., by Charles A. Lepp, his Guardian ad litem, Plaintiffs-Appellants, v. Robert HANSEN, Defendant-Respondent. |
| Decision Date | 05 April 1960 |
| Court | United States State Supreme Court of Wisconsin |
Lepp & Lepp, Kenosha, for appellants.
Cavanagh, Mittelstaed, Sheldon, Heide & Hartley, Kenosha, for respondent.
Three questions are raised: 1. Was the minor plaintiff guilty of contributory negligence? 2. Is contributory negligence a complete bar to recovery, or does the comparative negligence statute (sec. 331.045, Stats.) apply? 3. Was the award of $2,000 for personal injuries grossly inadequate?
The facts are not substantially in dispute. The defendant was the owner of a large German shepherd dog which he kept as a pet for his minor children. On the evening of March 21, 1958, when the defendant opened the side door of his home for a caller the dog slipped out and did not return. The defendant looked for the dog unsuccessfully that night and again the next morning. However, the following morning the dog was wandering about, several blocks away, on the street where the plaintiffs lived. The neighborhood children were playing with the dog when Bobby, the minor plaintiff, age eleven, joined them. Bobby thought it was a friendly dog, played with it, and petted it on the back. Eventually the dog, two little girls, and Bobby got onto the porch of Mrs. Wilbur Larsen, a few doors south of the Nelson home. Mrs. Larsen heard some noise, came to the door, and opened the inside door but kept the storm door closed. Mrs. Larsen owned a small dog, but it is not clear whether her dog was at the door or was seen by the defendant's dog. At least, Mrs. Larsen pushed her dog back from the door. The defendant's dog was walking back and forth on the porch. It was not growling. It placed its paws upon the Larsen storm door. Mrs. Larsen testified she told the children to step back from the door because she thought the glass might break. Bobby understood that Mrs. Larsen wanted the dog off the door and was requesting the dog's removal. Bobby then approached the dog from its rear and placed his arms around it just below its front legs. The dog turned around and bit Bobby in the face, then placed its paws on Bobby's shoulders and continued to bite Bobby. After the attack Bobby went home and was taken to the hospital. Mrs. Larsen in the meantime called the police who came after the dog. The dog was friendly and hopped into the police car upon call.
The minor plaintiff's more serious injuries consisted of lacerations of the right cheek, left corner of the mouth, left cheek, and at the angle of the jaw. The wounds were deep and ragged and required about 75 sutures. Bobby was hospitalized for a week, suffered pain and numbness during this period and during the next two weeks at home. The scars are permanent and noticeable; one on the left cheek has become a little wider and another lumpy. The scars can be minimized by plastic surgery but not eliminated, and more reddening of the scars can be expected.
The plaintiffs argue Bobby at the time he was bitten had acted as a normal boy of eleven years would act, and his action was instinctive and took place in the course of childish play. The defendant points out that the dog was raised as a pet in a family which had two small children and was accustomed to children, and that it was the act of Bobby, in approaching the dog from the rear and startling it when its attention was fixed on the dog inside the house, which caused the injury. Bobby had a dog of his own and had been told by his parents that he should not surprise it. However, Bobby did not think he would surprise the defendant's dog because it was so friendly.
In considering the question of contributory negligence, the jury could reasonably consider there was sufficient credible evidence that the defendant's dog was manageable, friendly, and responsive, and that it had been startled by Bobby's action. The jury could also consider that the act of Bobby's was not malicious or designed to antagonize the dog, and was an instinctive act of a child in response to what he thought was a request of an adult. As a matter of law we cannot say that Bobby was or was not negligent in what he did to the strange dog. The jury was properly instructed on the question of the standard of care to be exercised by a boy of Bobby's age, and there is credible evidence to sustain the jury's finding of contributory negligence.
The second question is whether contributory negligence is a complete bar to recovery or whether the comparative negligence statute applies. This raises a new and interesting question because this court has not previously considered whether the doctrine of comparative negligence applied to dog-bite cases. A decision on this question requires us to examine the nature of the liability of an owner of a dog. Sec. 174.02, Stats., 1 and sec. 331.045 2 are set forth below. Almost continuously since 1852 there have been statutes on the subject of the liability of dog owners. Some of the earlier acts were repealed or held unconstitutional. Slinger v. Henneman, 1875, 38 Wis. 504. Since 1878, the section has been substantially in the same language as is now provided in sec. 174.02. It has been said that the purpose of the act originally creating this section was to encourage the raising of sheep and to discourage the raising of dogs. Nelson v. Nugent, 1900, 106 Wis. 477, 82 N.W. 287.
In this state at common law the owner was not liable for damages resulting from the vicious act of his dog unless he had prior knowledge of its vicious propensities, Slinger v. Henneman, supra, or the injury was attributable to some negligence on the part of the owner, Dearth v. Baker, 1867, 22 Wis. 70 (*73) Negligence in the manner in which he kept domestic animals has been the basis of their owner's liability. Fox v. Koehnig, 1926, 190 Wis. 528, 209 N.W. 708, 49 A.L.R. 903 (); Kocha v. Union Transfer Co., 1925, 188 Wis. 133, 205 N.W. 923 (); Leipske v. Guenther, 1959, 7 Wis.2d 86, 95 N.W.2d 774, 96 N.W.2d 821 (); and cases hereinafter discussed. At common law an owner or keeper of a domestic animal which is not abnormally dangerous and which he does not have reason to know to be abnormally dangerous but which is likely to do harm unless controlled, is liable for the harm done by such an animal only if he fails to exercise reasonable care to confine or otherwise control it, or the harm is of a sort which it is normal for animals of that class to do. In the latter case the owner should foresee such possible harm. Restatement, 3 Torts, p. 37, sec. 518. Sub. (2) of this section of the Restatement apparently makes an exception to this rule so far as allowing dogs to run at large.
Cooley was of the opinion that negligence was the basis of an owner's liability for injuries by an animal known to be dangerous. 2 Cooley, p. 403. Blackstone thought the basis of liability in trespass cases of domestic animals was the negligence of the owner in keeping them. 3 Blackstone Comm. 221. See also 1 Street, Foundations of Legal Liability, 52. These views have been stated to be erroneous and strict liability at common law was based not on legal fault, but on public policy. 2 Harper and James, Law of Torts, p. 822, sec. 14.9; Prosser (Law of Torts), p. 322, sec. 57, ch. 11. But, as said by Holmes (p. 158): 'Whatever may be the true explanation of the rule applied to keeping tigers, or the principle of Rylands v. Fletcher, in the last cause [manner of keeping animals] we have entered the sphere of negligence, and, if we take a case lying somewhere between the two just stated, and add somewhat to the complexity of the circumstances, we shall find that both conduct and standard would probably be left without much discrimination to the jury, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances.' Holmes, The Common Law. One line of authorities explains the liability of one who knowingly keeps a vicious or dangerous animal as being based on the negligence of keeping such an animal. The other authorities explain the liability on social grounds calling it 'at his peril' and the want of negligence being deemed immaterial. Some courts state that true principle to be the fault, negligence, or failure to keep such animal securely. See 2 Am.Jur., Animals, p. 728, sec. 48, and cases cited.
The question is, what is the effect of sec. 174.02, Stats., on the common law rule? In the early cases of Kertschacke v. Ludwig, 1871, 28 Wis. 430, and Slinger v. Henneman, supra, doubt was expressed whether the statute abolishing the necessity of proving scienter was meant to apply to the situation where a person was injured. In Legault v. Malacker, 1914, 156 Wis. 507, 145 N.W. 1081, these doubts were said to be unfounded and the court held the part of the statute abolishing the necessity of proving scienter applied to actions to recover for injuries to a person, as well as to cattle. See also Koetting v. Conroy, 1937, 223 Wis. 550, 270 N.W. 625, 271 N.W. 369. Prior to the Legault case, Schaller v. Connors, 1883, 57 Wis. 321, 15 N.W. 389, had held a plaintiff could recover for a dog bite under the statute for injury to his clothes as well as to his person.
Further consideration of the statute developed decisions that the statute only applied to injuries from mischievous or vicious acts of a dog for which at common law the owner would not be liable unless he had knowledge or ought to have known of such propensities. Consequently, in Schraeder v. Koopman, 1926, 190 Wis. 459, 209 N.W. 714, where the plaintiff's automobile struck a dog crossing the street, no recovery was allowed on the reasoning the statute did not apply to innocent acts of a dog and liability for such acts...
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