Smaxwell v. Bayard

• Decision Date: 07 July 2004
• Docket Number: No. 03-0098.,03-0098.
• Citation: 682 N.W.2d 923,2004 WI 101,274 Wis.2d 278
• Parties: Tatum SMAXWELL, a minor, Tanya Smaxwell and Greg Smaxwell, Plaintiffs-Appellants-Petitioners, v. Melva BAYARD, Manitowoc County and Employers Health Insurance Company, Defendants, Gloria THOMPSON and Heritage Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

274 Wis.2d 278

2004 WI 101

682 N.W.2d 923

Tatum SMAXWELL, a minor, Tanya Smaxwell and Greg Smaxwell, Plaintiffs-Appellants-Petitioners, v. Melva BAYARD, Manitowoc County and Employers Health Insurance Company, Defendants, Gloria THOMPSON and Heritage Mutual Insurance Company, Defendants-Respondents.

No. 03-0098.

Supreme Court of Wisconsin.

Oral argument April 26, 2004.

Decided July 7, 2004.

For the plaintiffs-appellants-petitioners there were briefs by Jordan P. Blad and Alpert & Fellows LLP, Manitowoc, and oral argument by Jordan P. Blad.

For the defendants-respondents there was a brief by Jeremy T. Gill and Nash, Spindler, Grimstad & McCracken LLP, Manitowoc; and Jeffrey T. DeMeuse and Everson, Whitney, Everson & Brehm. SC, Green Bay, and oral argument by Jeremy T. Gill and Erik J. Pless.

¶ 1. JON P. WILCOX, J.

Tatum Smaxwell, a minor, and her parents, Tanya and Greg Smaxwell (collectively "the Smaxwells"), appeal from an unpublished court of appeals decision, Smaxwell v. Bayard, No. 03-0098, unpublished slip op. (July 30, 2003). The court of appeals affirmed an order of the Manitowoc County Circuit Court, Patrick L. Willis, Judge, which granted summary judgment in favor of the defendants, Gloria Thompson (Thompson) and her insurer, Heritage Mutual Insurance Company (Heritage Mutual),¹ and dismissed the Smaxwells' negligence action.

I. ISSUE

¶ 2. The issue presented is whether a landowner, who is also a landlord, may be liable on common-law negligence grounds, either in her capacity as a landowner or as a landlord, for injuries sustained by a person lawfully on her property caused by known dangerous dogs exclusively owned and controlled by her tenant. We hold, based on public policy factors, that common-law liability of landowners and landlords for negligence associated with injuries caused by dogs is limited to situations where the landowner or landlord is also the owner or keeper of the dog causing injury. While the facts of the case before us are egregious, allowing liability in this instance—where the defendant landowner/landlord is neither the owner nor the keeper of the dogs causing injury—would enter a field that has no sensible or just stopping point.

II. FACTUAL BACKGROUND

¶ 3. The parties do not dispute the material facts in this case. Thompson, at all times relevant to this action, owned two adjacent parcels of land in Manitowoc County. The larger of the two parcels contained Thompson's residence and a former motel that she had converted into apartments. In June of 1999, three of the apartment units were occupied. Thompson rented one unit to Melva Bayard and Richard Hines. Thompson rented the other two units to her daughters, Tanya Smaxwell and Nicole Klein. Tanya Smaxwell lived with her three children: Darion, Tatum, and Jayme. Nicole Klein also resided with her children: Nick and Rochelle.

¶ 4. The second, smaller parcel, roughly a quarter acre of woods, was located behind the first. This property was a separate parcel located behind the property on which Thompson's residence and the converted motel were located. Thompson allowed Bayard to house some of her dogs, including wolf hybrids,² on the second parcel since the early 1990s. Thompson allowed Bayard to keep her dogs on the back property on the condition that Bayard take care of and secure the dogs. Thompson did not charge Bayard any additional rent to keep her dogs in the wooded area. Bayard was in the business of breeding and selling her dogs.

¶ 5. Thompson was not aware of the number of dogs Bayard kept on the property and she took no active role in caring for or housing the dogs. However, Thompson did permit Bayard to construct a number of kennels on this second parcel of property to house the dogs. Thompson examined the construction of the kennels on at least one occasion, but had not inspected the conditions under which the dogs were housed since the mid-1990s. Thompson exercised no control over the animals but was aware that some of the dogs were wolf hybrids.

¶ 6. Since 1992, the Manitowoc County Sheriff's Department received over 70 complaints from Thompson's neighbors regarding the dogs. Most of the complainants expressed fear over the vicious-looking wolf hybrids and concern over the dogs being allowed to run at large. In 1992 a sheriff's deputy was bitten by a German Shepard owned by Bayard. In 1995 a caller complained that the dogs had killed his pigeons in the past. In 1999 Bayard admitted that the dogs had killed some of her puppies. None of the other complaints involved Bayard's dogs actually attacking another person or animal. Thompson was aware that there had been a number of complaints made to law enforcement personnel regarding the dogs and she was aware that one of the dogs bit a police officer. Also, Thompson received a citation regarding the dogs sometime in the mid-1990s. The nature and disposition of this citation are not part of the record.

¶ 7. On June 15, 1999, Tanya Smaxwell and Nicole Klein, along with their children, were visiting Thompson. The adults were preparing to drink coffee on the porch of Thompson's residence. While the adults were preparing the coffee, three-year-old Tatum was allowed to play outside with her five-year-old cousin Nick. Before the adults finished preparing the coffee, Nick ran into the house screaming that the dogs had attacked Tatum. Three of Bayard's wolf hybrid dogs, each weighing over 70 pounds, were attacking Tatum. Although Thompson and Tanya were able to free Tatum from the attacking dogs, Tatum sustained serious injuries. The attacks occurred on the larger of the two parcels owned by Thompson—the parcel upon which her residence and the converted motel were located. It is undisputed that the dogs were loose because Bayard neglected to latch the kennel the previous night.

III. PROCEDURAL POSTURE

¶ 8. On July 2, 2001, the Smaxwells filed suit against Bayard, Thompson, Heritage Mutual, and Manitowoc County for common-law negligence.³ The Smaxwells also joined Employers Health Insurance Company, k/n/a Humana, the insurer who made medical payments on behalf of Tatum. Humana later filed a subrogation counterclaim against Heritage Mutual. Bayard did not file an answer and did not appear in any of the proceedings.

¶ 9. Following discovery, Thompson moved for summary judgment on the ground that as a matter of law she was not responsible for Tatum's injuries either as a landowner or landlord. Manitowoc County moved for summary judgment on the ground of discretionary immunity. Heritage Mutual moved for summary judgment on the ground that Thompson had no personal liability and that if she did, its policy did not provide coverage. Heritage Mutual and the Smaxwells moved for summary judgment against Humana on the ground that Humana's subrogation counterclaim was barred under federal law.

¶ 10. On October 25, 2002, the circuit court rendered a decision and order on the various motions for summary judgment. The circuit court concluded that "Thompson's conduct, even if negligent, cannot form the basis for liability under the current state of the law in Wisconsin." The circuit court noted that the law does not impose liability on negligent landlords or landowners for injuries caused by nonowned dogs on their property. Therefore, the circuit court granted Thompson and Heritage Mutual's motions for summary judgment against the Smaxwells and dismissed the Smaxwells' claims against Thompson and Heritage Mutual. The circuit court also granted Manitowoc County's motion for summary judgment and dismissed the Smaxwells' claim against Manitowoc County. In addition, the circuit court granted Heritage Mutual's motion for summary judgment against Humana and dismissed Humana's cross-claim against Heritage Mutual. The court denied the Smaxwells' motion for summary judgment against Humana and dismissed Humana's cross-claim against Thompson, Manitowoc County, and Heritage Mutual.

¶ 11. The Smaxwells appealed the portion of the circuit court order granting summary judgment and dismissing their negligence action against Thompson and Heritage Mutual. The court of appeals held that under Wisconsin law only an owner or keeper of an animal may be held liable for common-law negligence. Smaxwell, No. 03-0098, unpublished slip op., ¶ 11. The court of appeals reasoned that because a landlord normally does not exercise control over a tenant's dog and is not normally the owner or keeper of the dogs, the landlord is not liable under common-law negligence for any injuries caused by the dog. Id. In addition, the court of appeals stated that a landlord is under a duty to exercise ordinary care only with respect to defects in and maintenance of the premises and that this rule does not extend to dog bite claims. Id., ¶ 15.

IV. STANDARD OF REVIEW

¶ 12. We review a circuit court's grant of summary judgment independently, applying the same methodology as the circuit court. Town of Delafield v. Winkleman, 2004 WI 17, ¶ 15, 269 Wis. 2d 109, 675 N.W.2d 470. Summary judgment "shall be rendered 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) (2001-02).⁴ We view the summary judgment materials in the light most favorable to the nonmoving party. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 537, 563 N.W.2d 472 (1997). Summary judgment should not be granted, "unless the facts presented conclusively show that the plaintiff's action has no merit and cannot be maintained." Goelz v. City of Milwaukee, 10 Wis. 2d 491, 495, 103 N.W.2d 551 (1960). Where the material facts are not disputed, the court is presented solely with a question of law, subject to de novo review. Town of Delafield,269 Wis. 2d 109, ¶ 16.

V. ANALYSIS

¶ 13. In this case, we are called upon to determine whether...