Schroeder v. Am. Family Mut. Ins. Co.

Decision Date29 July 2014
Docket NumberNo. 2013AP2165.,2013AP2165.
Citation356 Wis.2d 328,855 N.W.2d 493 (Table)
PartiesAnn Marie SCHROEDER, Plaintiff–Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE CO., Jeffrey A. Kistner and Jody Marie Kistner, Defendants–Respondents, Bayfield County Health and Human Services and Compcare Health Services Insurance Corporation, Defendants.
CourtWisconsin Court of Appeals
Opinion

¶ 1 MANGERSON, J.

Ann Schroeder was attacked by a pack of dachshunds belonging to Jeffrey and Jody Kistner. Despite evidence of two previous attacks involving the same pack of dachshunds, the trial court concluded Schroeder was not entitled to double damages under the dog injury statute, Wis. Stat. § 174.02(1)(b).1 The trial court also denied Schroeder's motion for additur following a jury verdict awarding her nothing for non-economic damages, such as pain and suffering.

¶ 2 We reverse in part and conclude Schroeder was entitled to double damages. Under the circumstances of the present case, the availability of double damages under Wis. Stat. § 174.02(1)(b) is not contingent upon proof that the specific dog or dogs that caused Schroeder's injuries also caused previous injuries. It is sufficient that the dogs were part of the same group that had participated in previous attacks. Accordingly, we remand so that the trial court may calculate the appropriate damages amount.

¶ 3 However, we affirm the trial court's decision on Schroeder's additur motion. Schroeder reasons that because she suffered economic damages, she must necessarily be entitled to non-economic damages. As we explain, this is contrary to Wisconsin law. Further, Schroeder has failed to establish the jury's failure to award non-economic damages shocks the judicial conscience.

BACKGROUND

¶ 4 On September 21, 2009, Schroeder arrived at the Kistners' home with her show dog, Neko. She knocked on the front screen door and the Kistners' eleven dachshunds rushed to the noise. The pack, working in concert, was able to push open the door and escape. Once loose, the dogs attacked Neko and bit her. Schroeder tried to intervene and pull Neko away, and she was bitten on her hands and leg. The Kistners heard Schroeder screaming and pulled their dogs away while a neighbor, John Hoiby, helped take Neko to safety.

¶ 5 Schroeder filed suit against the Kistners. Before trial, Schroeder requested that the circuit court decide whether she could pursue a double damages claim under Wis. Stat. § 174.02(1)(b), because the Kistners' dogs had engaged in two previous attacks. The attacks involved Hoiby and another of the Kistners' neighbors, Michael Olson.

¶ 6 Hoiby stated at deposition that the dachshunds had attacked his dog in May or June of 2009, resulting in a puncture wound

to the paw. Jeffrey Kistner was present when the attack occurred and recalled that at least one of the dachshunds involved in the attack was red and would be a dog the Kistners still had when Schroeder was hurt. Hoiby stated he could not identify the specific dachshund that injured his dog because all the dachshunds belonging to the Kistners looked alike. Hoiby believed the dachshunds were bred for killing.

¶ 7 Olson testified he had been attacked by the Kistners' dogs prior to September 21, 2009. He saw Jeffrey in the Kistners' backyard and asked if the dogs were out. Jeffrey responded that they were not, and Olson walked over. Olson and Jeffrey talked for about ten to fifteen minutes before the dachshunds were let loose:

Jody must have let the [dachshunds] out because they come running around the corner, and I seen the one going to bite me in the leg, so I slapped him, but he got my hand. One bit me in the calf, and I got the one off my hand, and another one bit my hand. Jeff is kicking them away, and then ... he's pushing them away, and ... I know where the electric fence is, so I went up beyond that. The dogs weren't in the yard when I was talking to Jeff. They were let out.

Olson was bitten three times, twice on the hand and once on the calf. He stated he could not count the number of dogs that attacked him, but he estimated around nine or ten dogs, and maybe more. Olson could not remember any distinguishing features of the dogs except that some were black and some were brown. Olson believed the dachshunds were trained to attack and would hunt in groups, stating, [I]f one bites, they're all going to bite.”

¶ 8 The pack of dogs that attacked Schroeder was generally composed of the same individual dogs that engaged in the two previous attacks. The evidence established that one dog in the group was euthanized before the incident involving Schroeder.

¶ 9 The Kistners opposed Schroeder's motion, asserting that to be liable for double damages under Wis. Stat. § 174.02(1)(b), Schroeder had to show the dogs that caused her injuries were the specific dogs that had bitten Hoiby's dog and attacked Olson. Under the Kistners' theory, Schroeder's double damages request would fail because none of the victims of the attacks could identify the specific dogs that caused their injuries. The court agreed with the Kistners and denied Schroeder's motion, citing § 174.02(1)(b)'s plain language and reasoning that “the legislature limited this statute by applying it to a particular dog in the singular sense.”

¶ 10 The case proceeded to trial. The parties stipulated that the Kistners were liable for Schroeder's injuries, and they agreed to economic damages, including medical expenses, in the amount of $2,491.15. The matter of non-economic damages, including pain, suffering, disability, and disfigurement, was left for trial. The jury awarded no such damages, and Schroeder filed a post-verdict motion for additur, reasoning that it was undisputed she was injured and she was therefore necessarily entitled to some amount for her pain and suffering. The court denied the motion, and Schroeder now appeals.

DISCUSSION

¶ 11 On appeal, Schroeder presents two arguments. First, she argues the trial court erred when interpreting Wis. Stat. § 174.02(1)(b), and she asserts she is entitled to double damages. Second, Schroeder asserts the trial court erred when denying her motion for additur.

1. Double damages under Wis. Stat. § 174.02(1)(b)

¶ 12 This case requires us to interpret Wis. Stat. § 174.02(1)(b) and apply it to undisputed facts. We review the interpretation and application of the statute de novo. Gasper v. Parbs, 2001 WI App 259, ¶ 8, 249 Wis.2d 106, 637 N.W.2d 399. We begin with the language of the statute and interpret it according to the plain meaning of its terms. Id. If the statute is clear and unambiguous, we apply it to the facts at hand without further analysis. Id. The statute will not be construed in a manner that leads to absurd or unreasonable results, and we strive to interpret a statute in a way that advances its purposes. Id.

¶ 13 With these principles in mind, we turn to the statute's language. Wisconsin Stat. § 174.02(1) creates a strict-liability penalty scheme for owners whose dogs cause injury. Pawlowski v. American Family Mut. Ins. Co., 2009 WI 105, ¶ 17, 322 Wis.2d 21, 777 N.W.2d 67. Under § 174.02(1)(a), an owner is liable for the full amount of damages “caused by the dog injuring or causing injury to a person....” Paragraph (b) makes an owner liable for double damages if he or she “was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.” Wis. Stat. § 174.02(1)(b).

¶ 14 The primary dispute in this case revolves around how the double damages provision of the statute should be interpreted as it relates to a pack of dogs.2 The statute is written in the singular: “a dog,” and “the dog injuring or causing injury.” See Wis. Stat. § 174.02(1)(b). The Kistners argue this means Schroeder must present evidence that the specific dogs that caused her injuries also caused a previous injury. Because Schroeder failed to make such a showing, the Kistners argue she is not entitled to double damages.

¶ 15 The obvious problem with this construction is that oftentimes it is impossible to pinpoint which specific dog in a pack caused an injury. A group of uncontrolled dogs no doubt engenders confusion and panic in the victim, and if the dogs are similar in appearance, even the calm individual's perception might fail. In this case, for example, the two previous victims of the Kistners' dachshunds could not identify the dog or dogs that caused their injuries. Schroeder concedes she cannot do so either.

¶ 16 This situation is not unique in the law of Wisconsin. In our view, Nelson v. Nugent, 106 Wis. 477, 82 N.W. 287 (1900), and Johnson v. Lewis, 151 Wis. 615, 139 N.W. 377 (1913), two cases concerning such “group attacks,” definitively resolve the issue and require an award of double damages in this case.

¶ 17 In Nelson, the plaintiff commenced an action under a predecessor statute to Wis. Stat. § 174.02. Nelson, 106 Wis. at 478–79, 82 N.W. 287. The trial evidence established that thirteen of Nelson's sheep were killed, and others injured, by two dogs, one of which belonged to the defendant. Id. at 478, 82 N.W. 287. The other dog's owner was not known. Id. The court instructed the jury that “each owner of a dog which is concerned in or engaged in the killing, wounding, and worrying of sheep is liable for the whole amount of damages which his dog was concerned or engaged in doing.” Id. at 479, 82 N.W. 287. The defendant challenged this instruction on appeal.

¶ 18 Our supreme court determined the instruction was a proper statement of the law, and set forth several principles that guide our conclusion that double damages are appropriate in this case. First, the court recognized, as we have, that dogs have a propensity to attack in groups, and it is often a fool's errand to attempt to identify which dog in a pack caused a specific injury:

It is practically impossible, in most cases, to tell what damage was done by one dog and what by the other. The difficulty in apportioning the damage led the legislature to adopt the language set forth in the
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