Palloni v. Smith

• Decision Date: 19 April 1988
• Docket Number: Docket No. 89066
• Citation: 167 Mich.App. 393,421 N.W.2d 699
• Parties: Peggy PALLONI, Next Friend of Timothy Palloni, a minor, Plaintiff-Appellee, v. Steven SMITH, Defendant-Appellant. 167 Mich.App. 393, 421 N.W.2d 699
• Court: Court of Appeal of Michigan — District of US

Page 699

421 N.W.2d 699

Peggy PALLONI, Next Friend of Timothy Palloni, a minor Plaintiff-Appellee, v. Steven SMITH, Defendant-Appellant.

Docket No. 89066.

167 Mich.App. 393, 421 N.W.2d 699

Court of Appeals of Michigan.

Submitted March 9, 1987.

Decided March 22, 1988.

Released for Publication April 19, 1988.

[167 MICHAPP 394] Rifkin & Kingsley, P.C. by David K. Whipple, Detroit, for plaintiff-appellee.

Mitchell & Leon by Harold B. Leon, and MacArthur, Cheatham, Acker & Smith, P.C. by James G. Gross, of counsel, Detroit, for defendant-appellant.

Before CYNAR, P.J., and WEAVER and CHERRY, ^* JJ.

PER CURIAM.

Peggy Palloni, as next friend of her minor son, Timothy Palloni, brought suit against [167 MICHAPP 395] Steven Smith under Michigan's dogbite statute, M.C.L. Sec. 287.351; M.S.A. Sec. 12.544, as a result of events which occurred on June 12, 1981. On that date Timothy, who was two years old at the time, was walking hand in hand with plaintiff from his home to a neighbor's home, where his sister was playing with friends. The defendant's home was four houses from the plaintiff's and next door to the yard in which the children were playing. While walking, plaintiff observed the defendant's cocker spaniel walking loose in the defendant's yard without a leash and barking at the girls next door.

Plaintiff also saw one of the girls with whom her daughter was playing teasing the dog by standing in the defendant's driveway and stamping her feet at the dog. Plaintiff warned the girl to move away because the dog might bite. Eventually the girl stepped away and the dog sat down on the grass in the defendant's yard, near the driveway and close to the public sidewalk. While plaintiff was talking to her daughter, Timothy let go of plaintiff's hand, walked over to the dog, bent down, and attempted to hug it. Timothy had not actually touched the dog when it bit him on the face, causing injuries which required extensive medical care.

The trial court instructed the jury that, as no other elements of the dog bite statute had been contested, the sole factual issue was whether the attack was without provocation and further instructed the jury that plaintiff had the burden of proof on the question of provocation. Plaintiff's attorney conceded that, if the jury found the attempted hug to be provocative, plaintiff could recover no damages. After the jury returned a verdict of no cause of action, the trial judge granted plaintiff's motion for a new trial on the ground that the verdict was against the great weight of the evidence. From that opinion and order the [167 MICHAPP 396] defendant has been granted leave to appeal to this Court.

It is within the sound discretion of the trial court to grant or deny a motion for a new trial; however, a court may not substitute its judgment for that of the finders of fact, and a jury's verdict should not be set aside where there is competent evidence to support it. Bell v. Merritt, 118 Mich.App. 414, 422, 325 N.W.2d 443 (1982), lv. den. 417 Mich. 954 (1983). Here, we find there was competent evidence to support the jury's verdict.

This case was brought under M.C.L. Sec. 287.351; M.S.A. Sec. 12.544:

"The owner of any dogs which shall without provocation bite any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness."

Here, the jury clearly must have found there to have been provocation. For us to determine that there was competent evidence to sustain that finding, we must also find that a person who does not intend to provoke a dog nevertheless can do things which are sufficiently provocative to relieve a dog owner of liability under the statute.

In Nicholes v. Lorenz, 396 Mich. 53, 237 N.W.2d 468 (1976), reh. den. 396 Mich. 976 (1976), the Supreme Court noted that the questions for the jury, where it was agreed that the defendant's dog had bitten the plaintiff's daughter after the girl had stepped on the dog's tail, was whether that act constituted provocation under the statute. Nicholes, supra at 60, 237 N.W.2d 468. The Court also noted that, in enacting a statute which imposed almost absolute [167 MICHAPP 397] liability for dog owners, "the Legislature excepted the consequences which might reasonably result from provoking an animal." Nicholes, supra at 59-60, 237 N.W.2d 468.

While no Michigan appellate decisions have focused expressly on the dog-bite victim's intent, the appellate courts of other jurisdictions have. The Illinois appellate court, in Nelson v. Lewis, 36 Ill.App.3d 130, 344 N.E.2d 268 (1976), was confronted with a dog-bite statute similar to Michigan's and held that an unintentional act can constitute provocation. In that case, the court found that a 2 1/2-year-old girl's stepping on the tail of a normally peaceful dog was sufficient provocation to preclude recovery under the statute, despite the fact that the provocation was not intentional. Nelson, supra at 133, 344 N.E.2d 268. That court also emphasized that the young girl's tender age did not relieve her of the responsibility for the provoking act. Id.

Four years later the Illinois appellate court followed the rule it had established in the Nelson case. In Stehl v. Dose, 83 Ill.App.3d 440, 38 Ill.Dec. 697, 403 N.E.2d 1301 (1980), it decided that the question of provocation under the dog-bite statute must focus on whether the plaintiff's actions would be provocative to the dog. Going on, the Illinois court said: "However, whether plaintif...