Pawlowski v. American Family Mut. Ins. Co.
| Decision Date | 03 December 2008 |
| Docket Number | No. 2007AP2651.,2007AP2651. |
| Citation | 2009 WI App 7,762 N.W.2d 802 |
| Court | Wisconsin Court of Appeals |
| Parties | Colleen PAWLOWSKI and Thomas Pawlowski, Plaintiffs-Appellants<SMALL><SUP>†</SUP></SMALL> v. AMERICAN FAMILY MUTUAL INS. CO. and Nancy L. Seefeldt, Defendants-Respondents. |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Michael S. Siddall and Andrew J. Rossmeissl of Herrling Clark Law Firm Ltd., Appleton. There was oral argument by Michael S. Siddall.
On behalf of the defendants-respondents, the cause was submitted on the brief of Sandra L. Hupfer and Kathryn M. Ver Boort of Stellpflug, Janssen, Hammer, Kirschling & Bartels, S.C., De Pere. There was oral argument by Sandra L. Hupfer.
Before BROWN, C.J., SNYDER and NEUBAUER, JJ.
Colleen and Thomas Pawlowski appeal from a summary judgment granted in favor of American Family Mutual Insurance Company and Nancy L. Seefeldt. The Pawlowskis contend that the trial court erred in its determination that Seefeldt was not strictly liable under the dog bite statute, WIS. STAT. § 174.02 (2005-06),1 for injuries sustained by Colleen when a dog kept at Seefeldt's residence was let out the front door by its legal owner, Walter Waterman. The dog bite statute holds persons who "own, harbor or keep" a dog strictly liable for any damages the dog causes. A statutory keeper may be simultaneously liable with an owner. The trial court concluded that at the moment of injury, the dog's legal owner had control of the dog and, therefore, Seefeldt was not a statutory keeper under § 174.02. We reverse the trial court's ruling.
¶ 2 To be a keeper under WIS. STAT. § 174.02, one must exercise some measure of custody, care or control over the dog. Generally, one who provides shelter and protection for a dog in his or her own home, i.e., has custody, is a keeper. While a person's keeper status can change over time, with the focal point being the time of injury, Wisconsin case law instructs that a statutory keeper retains keeper status, despite an owner's temporary control, unless the keeper has relinquished custody, care and control of the dog to the owner at the time of the injury. Here, at the time of the injury, the dog was still kept at Seefeldt's home and the injury occurred when the dog charged out the door of her home. Thus, we conclude that she remained a keeper at the time of the injury, regardless of the fact that the legal owner let the dog out the door. We therefore conclude that she is liable for Colleen's injury and that the Pawlowskis are entitled to judgment as a matter of law. We reverse the judgment and remand with directions to enter judgment in favor of the Pawlowskis.
¶ 3 Waterman and his two dogs moved into Seefeldt's residence in June 2003. Waterman had recently lost his job and needed a place to live that allowed dogs. He was unable to live with his girlfriend, as her apartment would not allow dogs. A mutual friend of Waterman and Seefeldt believed that Seefeldt's property, having a large fenced backyard, would be suitable for dogs. The friend approached Seefeldt about Waterman living there with the dogs until he found a job. Seefeldt also kept three dogs of her own at her house.
¶ 4 Waterman and the dogs lived at the house without event until October 26, 2003. On October 26, 2003, Seefeldt was home when Waterman opened the front door to go to the grocery store; Seefeldt stated in her deposition that Waterman "always put [the dogs] in his car and took them with him." The dogs immediately charged across the street, while Waterman chased them, and one of the dogs bit Colleen three times.
¶ 5 As a result of the incident, Colleen sustained sixteen puncture wounds and soft tissue damage. Waterman subsequently moved out of the house with his two dogs and could not be located for litigation. Colleen and her husband filed this action against Seefeldt and her insurer, American Family, on October 25, 2006.
¶ 6 Seefeldt and American Family sought summary judgment on grounds that the Pawlowskis failed to state a claim upon which relief could be granted because Seefeldt was not the "keeper" of the dogs at the time of the incident, and thus was not a statutory owner subject to liability under WIS. STAT. § 174.02.2 The Pawlowskis opposed, arguing that summary judgment on the issue of whether Seefeldt was a statutory keeper should be denied as there are "several genuine issues of material fact that should be resolved by a jury."3
¶ 7 After hearing oral argument from both parties, the trial court granted summary judgment for Seefeldt and American Family on grounds that Seefeldt was not a keeper of the dogs at the time of the attack, and to the extent Seefeldt was a keeper of the dogs, that status ended when Waterman "exercise[d] dominion" over the dogs by leaving the residence with them. The court noted that Seefeldt clearly would be the statutory keeper of the dogs if, for example, she had been the one leaving the house with them or if a different incident had occurred while Waterman was not there.
¶ 8 The Pawlowskis appeal.
¶ 9 Under WIS. STAT. § 174.02, an "owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property." An "owner" is defined as "any person who owns, harbors or keeps a dog." WIS. STAT. § 174.001(5). The strict liability statute's purpose "is to protect those people who are not in a position to control the dog." Armstrong v. Milwaukee Mut. Ins. Co., 202 Wis.2d 258, 268, 549 N.W.2d 723 (1996). At issue on appeal is (1) whether the fact that Seefeldt sheltered the dog at her residence rendered her a statutory "keeper" and therefore a statutory "owner" at the time of Colleen's injury and (2) if so, whether Seefeldt relinquished that status when the legal owner let his dog out the door of her home. The Pawlowskis argue that Seefeldt was a statutory owner and that her keeper status was not relinquished. The Pawlowskis contend that the trial court erred when it granted summary judgment in favor of Seefeldt.
¶ 10 The grant or denial of a motion for summary judgment is a matter of law that this court reviews de novo. Torgerson v. Journal/Sentinel, Inc., 210 Wis.2d 524, 536, 563 N.W.2d 472 (1997). Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." WIS. STAT. § 802.08(2). Whether Seefeldt was an "owner" of the dog at the time of the injury within the meaning of WIS. STAT. § 174.02 also presents a question of law which we review de novo. See Braverman v. Columbia Hosp., Inc., 2001 WI App 106, ¶ 12, 244 Wis.2d 98, 629 N.W.2d 66 ().
¶ 11 In Wisconsin, both a legal owner and statutory keeper can be simultaneously strictly liable under WIS. STAT. § 174.02. See Fire Ins. Exch. v. Cincinnati Ins. Co., 2000 WI App 82, ¶ 18, 234 Wis.2d 314, 610 N.W.2d 98. "Reading the statute to allow both owners and keepers to be liable comports with the statute's policy of assigning responsibility to those in a position to protect innocent third parties from dog bites." Id., ¶ 17. To be a keeper and therefore an owner, the person "must exercise some measure of custody, care or control over the dog." Armstrong, 202 Wis.2d at 267, 549 N.W.2d 723 (citing Hagenau v. Millard, 182 Wis. 544, 547-48, 195 N.W. 718 (1923)) (exercise control over, or furnish with shelter, protection or food); Janssen v. Voss, 189 Wis. 222, 224, 207 N.W. 279 (1926) (); Koetting v. Conroy, 223 Wis. 550, 552, 270 N.W. 625 (1936) (); and Pattermann v. Pattermann, 173 Wis.2d 143, 150, 496 N.W.2d 613 (Ct.App.1992) ().4
¶ 12 Thus, one who shelters or maintains the dog on his or her premises, i.e., has custody of the dog at his or her home, is a "keeper." Armstrong, 202 Wis.2d at 266, 549 N.W.2d 723 (). However, "[t]he casual presence of dogs will not suffice to transform a person into a keeper; there must be evidence that the person has `furnished them with shelter, protection, or food, or that they exercised control over the dogs.'" Id. (citing Hagenau, 182 Wis. at 547-48, 195 N.W. 718); see also Koetting, 223 Wis. at 552, 270 N.W. 625.
Seefeldt as "Keeper"
¶ 13 At the outset, we address the issue of whether Seefeldt was a keeper within the meaning of WIS. STAT. § 174.02. The parties dispute whether Seefeldt's involvement with Waterman and his dogs was sufficient to qualify her as a keeper. Based on our review of the record, we conclude that Seefeldt was a keeper under § 174.02.
¶ 14 While the facts of record are sparse, it is undisputed that Waterman and his dogs had resided at Seefeldt's personal residence for approximately four months prior to the incident. By permitting Waterman's dogs to reside at her home over a period of months, Seefeldt provided them with both shelter and protection on an ongoing basis and was therefore a keeper. See, e.g., Armstrong, 202 Wis.2d at 265, 549 N.W.2d 723 ().
¶ 15 In so holding, we reject Seefeldt's attempt to liken herself to a "pro bono" landlord in an effort to escape keeper status. The cases cited by Seefeldt involve traditional landlord/tenant arrangements, not a situation where the owner of a home permits another person in her house to maintain a dog on the same premises. See Hagenau, 182 Wis. at 548-49, 195 N.W. 718 (); Malone v. Fons, 217 Wis.2d 746, 764-65, 580 N.W.2d 697 (Ct. App.1998) ...
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Pawlowski v. American Family Mut. Ins. Co.
...Accordingly, we affirm the decision of the court of appeals. ¶ 79 The decision of the court of appeals is affirmed. 1. Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI App 7, ¶ 28, 315 Wis.2d 799, 762 N.W.2d 2. All references to the Wisconsin Statutes are to the 2007-08 version, unless otherw......