Szkodzinski v. Griffin

• Decision Date: 10 November 1988
• Docket Number: Docket No. 95558
• Citation: 171 Mich.App. 711,431 N.W.2d 51
• Parties: William SZKODZINSKI, individually and as Next Friend of Michael Szkodzinski, a Minor Plaintiff-Appellant, v. Lawrence A. GRIFFIN and Catherine Griffin, Defendants-Appellees, and R.M. Cornell, Defendant. 171 Mich.App. 711, 431 N.W.2d 51
• Court: Court of Appeal of Michigan — District of US

Page 51

431 N.W.2d 51

William SZKODZINSKI, individually and as Next Friend of Michael Szkodzinski, a Minor Plaintiff-Appellant, v. Lawrence A. GRIFFIN and Catherine Griffin Defendants-Appellees and R.M. Cornell, Defendant.

Docket No. 95558.

171 Mich.App. 711, 431 N.W.2d 51

Court of Appeals of Michigan.

Submitted May 17, 1988.

Decided June 21, 1988.

Released for Publication Nov. 10, 1988.

[171 MICHAPP 712] Leonard A. Siudara, P.C. by Leonard A. Siudara, Bloomfield Hills, for plaintiff-appellant.

Plunkett & Cooney, P.C. by Robert G. Kamenec and Suzanne L. Wilhelm, Detroit, for defendants-appellees.

Before HOOD, P.J., and CYNAR and BURNS, ^* JJ.

PER CURIAM.

This is a dog-bite case. Lawrence Griffin (hereinafter defendant) owned a house located on Brys Drive in Grosse Pointe Woods. He rented the house to R.M. Cornell, who owned an Akita dog. The house had a fenced-in backyard. While Cornell was away, six-year-old Michael Szkodzinski climbed the fence and entered Cornell's back yard in order to retrieve a ball. Cornell's dog attacked Michael, causing serious injuries.

Plaintiff sued the Griffins and Cornell, alleging causes of action under a Grosse Pointe Woods city ordinance and common law. The Griffins filed a motion for summary disposition under MCR 2.116(C)(8) and (10), which was granted. Plaintiff appeals as of right.

The Grosse Pointe Woods city ordinance involved, adopted pursuant to provisions of the Dog Law of 1919, M.C.L. Sec. 287.290; M.S.A. Sec. 12.541, provided [171 MICHAPP 713] that "any person owning, possessing or harboring any dog ... shall be responsible for and shall be held accountable for any and all acts or actions of such dog."

Plaintiff sought to recover damages under the ordinance from defendant owner of the premises, arguing that, because defendant knew that the tenant would keep a dog on the premises, he was harboring a dog. The trial judge granted defendant's motion for summary disposition, ruling that the ordinance did not create a private cause of action. We agree. See, e.g., Levendoski v. Geisenhaver, 375 Mich. 225, 227, 134 N.W.2d 228 (1965), and Taylor v. Saxton, 133 Mich.App. 302, 306, 349 N.W.2d 165 (1984), lv. den. 419 Mich. 921 (1984).

The trial judge also held that, even if the ordinance did create a private cause of action, defendant did not "own, possess or harbor" the dog. Again, we agree. Although Griffin knew that his tenant kept a dog on the premises, Griffin had no control or possession of either the premises or the dog. The trial court's ruling was correct.

Plaintiff also argues that this Court should adopt a new rule of law imposing strict liability on a landlord where an individual has been bitten by a tenant's dog and where the landlord knew at the time that he leased the premises that the tenant would be keeping a dog on the premises. We decline plaintiff's invitation.

M.C.L. Sec. 287.351; M.S.A. Sec. 12.544 provides a remedy for a person who is bitten by a dog: "The owner of any dogs which shall without provocation bite any person ... 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." By its own terms, the statute applies to the dog's owner. See, e.g., Klimek v. Drzewiecki, 135 Mich.App. 115, 118, 352 [171 MICHAPP 714] N.W.2d 361 (1984). Because defendant was not the dog's owner, he cannot be held liable under Michigan's dog-bite statute. The basis of liability is not negligence in the manner of keeping and confining the animal, but in keeping him at all. Wojewoda v. Rybarczyk, 246 Mich. 641, 643, 225 N.W. 555 (1929). There is no basis for imposing strict liability on a landlord who neither owns, keeps nor controls the dog.

Finally, plaintiff argues that the trial judge erred by granting defendant's motion for summary disposition on plaintiff's common-law claim. We disagree.

Under common law, the owner or keeper of an animal could be held liable only if he knew of its vicious nature. Nicholes v. Lorenz, 396 Mich. 53, 59, n. 3, 237 N.W.2d 468 (1976), reh. den. 396 Mich. 976 (1976). Similarly, the only possible way that defendant could be held liable on a common law theory would be if he knew of the dog's vicious nature. See, e.g., Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13 (1984). However, defendant testified in his deposition that he had never seen Cornell's dog be anything other than very friendly. A neighbor similarly testified that the dog was very playful and loving.

A motion brought under MCR 2.116(C)(10) tests whether...