Pawlowski v. American Family Mut. Ins. Co.
| Decision Date | 29 December 2009 |
| Docket Number | No. 2007AP2651.,2007AP2651. |
| Citation | 777 N.W.2d 67,2009 WI 105 |
| Parties | Colleen PAWLOWSKI and Thomas Pawlowski, Plaintiffs-Appellants, v. AMERICAN FAMILY MUTUAL INS. CO. and Nancy L. Seefeldt, Defendants-Respondents-Petitioners. |
| Court | Wisconsin Supreme Court |
¶ 1
This is a review of a published decision of the court of appeals1 reversing a judgment of the Circuit Court for Winnebago County, Thomas J. Gritton, Judge. The circuit court granted summary judgment to the defendants, American Family Mutual Insurance Company and their insured, Nancy L. Seefeldt (collectively referred to as Ms. Seefeldt), against the plaintiffs, Colleen Pawlowski and her husband, Thomas Pawlowski. The circuit court concluded that there were no genuine issues of material fact and that Ms. Seefeldt was not a "keeper" of a dog, that is, that she was not a statutory owner of the dog under Wis. Stat. § 174.02 (2007-08)2 at the time of the dog bite incident. According to the circuit court, Ms. Seefeldt was not exercising control over the dog at the time of the dog bite incident. The circuit court concluded that Ms. Seefeldt is not liable to the plaintiffs for damages under the statute. The circuit court also concluded that judicial public policy precluded liability.
¶ 2 The court of appeals reversed the judgment of the circuit court, holding that Ms. Seefeldt "was a keeper of the dog and remained a keeper" at the time of the plaintiffs' injury and therefore "is strictly liable as a statutory owner under Wis. Stat. § 174.02." The court of appeals concluded that Ms. Seefeldt was, under the circumstances of the present case, a statutory owner of the dog as a keeper of the dog at the time of the dog bite incident and that she was liable under the statute for damages to the plaintiffs. We affirm the decision of the court of appeals.
¶ 3 The issue before this court is whether a homeowner is liable under Wis. Stat. § 174.02, as a person who either "harbors" or "keeps" a dog, for injuries caused by a dog she allows to reside in her home when the dog injures a third party after the unleashed dog is allowed out of the house by its legal owner.
¶ 4 Under Wis. Stat. § 174.02, a person who owns, harbors, or keeps a dog is liable for damages caused by the dog injuring or causing injury to a person. It is undisputed that Ms. Seefeldt does not own the dog in question. The dispositive question, therefore, is whether under the facts of this case Ms. Seefeldt is liable under the statute as a person who either "harbors" or "keeps" the dog that bit Colleen Pawlowski.
¶ 5 Ms. Seefeldt argues that she was not a "keeper" or "harborer" of the dog for purposes of Wis. Stat. § 174.02 at the time of the dog bite incident because Mr. Waterman, the dog's owner, had "full custody, control and dominion over the dog" at that time and that her limited dominion as a keeper was terminated when Mr. Waterman left the house with the unleashed dogs.3 She claims that at that moment, the "dual authority" shared by her and Mr. Waterman was "merged in the owner," and her "responsibilities concerning the dog [were] at an end."4 She also asserts that judicial public policy precludes recovery by the plaintiffs.5
¶ 6 In contrast, the plaintiffs argue that Ms. Seefeldt was an "owner," that is, one who harbors or keeps a dog, regardless of whether she was in immediate control of the dog at the time the injury occurred. The plaintiffs assert that Ms. Seefeldt had not relinquished her "owner" status under the statute at the time of the dog bite incident.
¶ 7 We conclude that Ms. Seefeldt harbored the dog and was thus a statutory "owner" of the dog under Wis. Stat. § 174.02 at the time of the dog bite incident. Her status as a harborer of the dog was not extinguished when the dog's legal owner took momentary control of the dog. We also conclude that the traditional public policy factors that delimit tort liability in Wisconsin do not bar recovery in the present case. Accordingly, we affirm the decision of the court of appeals.
¶ 8 The undisputed facts are taken from the depositions submitted as part of the summary judgment motions.
¶ 9 In June or July of 2003, Ms. Seefeldt agreed to let Walter Waterman, an acquaintance of her daughter, move into her home when he was unemployed and needed a place to stay where he could keep his two dogs. Ms. Seefeldt had three of her own dogs and a large fenced backyard. Mr. Waterman never paid rent; they apparently had an informal arrangement that Mr. Waterman would help with some home repairs and housekeeping.
¶ 10 Ms. Seefeldt reported that when Mr. Waterman moved in, she was told that the dogs, Boo and Diesel, were friendly, but she also acknowledged that Mr. Waterman told her that Boo had recently nipped a six-year-old girl on the arm and frightened her. Ms. Seefeldt stated she was not told of any other incident in which Boo injured anyone.
¶ 11 On the afternoon of October 26, 2003, as Colleen Pawlowski walked in front of Ms. Seefeldt's home, she heard a sound like a door opening and saw Mr. Waterman's two unleashed dogs jump off the porch and charge her. Mr. Waterman chased the dogs and shouted to stop them but was unable to bring them under his control. Boo jumped up on Colleen Pawlowski and tried to bite her left shoulder, tearing her coat. The dog then bit at her left thigh and finally punctured her calf, causing Ms. Pawlowski to fall to her knee before Mr. Waterman was able to control both dogs. Although her shoulder and thigh were uninjured, Ms. Pawlowski did suffer puncture wounds to her calf.
¶ 12 Mr. Waterman then grabbed the dogs and held them as he offered to give Colleen Pawlowski a ride home, which she declined. Colleen Pawlowski observed that the skin was broken and told Mr. Waterman she would need to go to the emergency room. She then walked to the end of the street, to the home of a neighbor whom she knew, and asked the neighbor for a ride.
¶ 13 At the time the attack occurred, Ms. Seefeldt was at home. She did not see the attack and did not learn of it until a police officer came to her door to investigate later that day. Following the attack, Mr. Waterman apparently proceeded to the grocery store, taking his dogs with him. When he returned to the house, Ms. Seefeldt asked him about the attack and Mr. Waterman relayed that when he had opened the door to leave for the grocery store the dogs had run into the street, toward Colleen Pawlowski, instead of running to the car. He told her that Boo bit Colleen Pawlowski and that he had offered Ms. Pawlowski a ride home or to the doctor, but that she declined the offer. Ms. Seefeldt told Mr. Waterman that Boo should be put to sleep, but she apparently did not seek further information about the incident. One to two weeks later, Ms. Seefeldt asked Mr. Waterman and his dogs to leave her home.
¶ 14 Mr. Waterman is not and has never been a named defendant and has not been located for purposes of discovery and litigation. Both a legal owner and statutory owner of a dog can be simultaneously strictly liable under Wis. Stat. § 174.02.6
¶ 15 We review summary judgment decisions using the same standards and method as are applied by the circuit court. Under Wis. Stat. § 802.08(2),7 a moving party is entitled to summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.8 A court may also determine that the nonmoving party is entitled to summary judgment. Wis. Stat. § 802.08(6).
¶ 16 Interpretation of a statute and application of a statute to undisputed facts (as in the present case) are generally questions of law that this court determines independently of the court of appeals and circuit court but benefiting from the analyses of these courts.9 Application of judicial public policy factors is a question of law that this court determines independently of the court of appeals and circuit court but benefiting from the analyses of these courts.10
¶ 17 We begin by examining the language of the applicable statute. Wisconsin Stat. § 174.02 provides that "the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person." Section 174.02 is a strict liability statute. If the owner "was notified or knew that the dog previously injured or caused injury to a person," then the victim can recover double damages.
¶ 18 The liability provisions of Wis. Stat. § 174.02 provide as follows:
§ 174.02(1)(a). Without notice. Subject to s. 895.045 and except as provided in s. 895.57(4), the 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.
§ 174.02(1)(b). After notice. Subject to s. 895.045 and except as provided in s. 895.57(4), the owner of a dog is liable for 2 times the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property if the owner was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.
¶ 19 Critically here, the statutory "owner" of a dog is defined for purposes of Wis. Stat. § 174.02 more inclusively than simply a legal owner of the dog. Wisconsin Stat. § 174.001(5)...
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