Trager v. Thor

• Decision Date: 17 May 1994
• Docket Number: M,No. 12,No. 96434,96434,12
• Citation: 516 N.W.2d 69,445 Mich. 95
• Parties: Randy TRAGER, Next Friend of Rachael Trager, a Minor, and Randy Trager and Brenda Trager, Individually, Plaintiffs-Appellees, v. Thomas THOR and Patricia Thor, Defendants, Robert Thor, Defendant-Appellant. Calendararch Term.
• Court: Michigan Supreme Court

Page 69

516 N.W.2d 69

445 Mich. 95

Randy TRAGER, Next Friend of Rachael Trager, a Minor, and Randy Trager and Brenda Trager, Individually Plaintiffs-Appellees, v. Thomas THOR and Patricia Thor, Defendants Robert Thor, Defendant-Appellant.

No. 96434.

Calendar No. 12, March Term.

Supreme Court of Michigan.

Argued March 9, 1994.

Decided May 17, 1994.

[445 Mich. 96] Paul D. Sherr, P.C., Birmingham, Attorney for plaintiffs-appellees.

Noreen L. Slank, Southfield, for defendant/appellant.

[445 Mich. 97] Scott D. Sitner, brief on appeal--amicus curiae, Southfield, for Animals, Inc.

Before the entire Bench.

OPINION

BOYLE, Justice.

Today we are asked to consider which theories of liability are appropriate for an action against one in temporary possession of a domestic animal that inflicts injuries while in such possession. The Court of Appeals allowed the plaintiffs' common-law strict liability and negligence claims against a temporary caretaker of a dog to survive the caretaker's motion for summary disposition. Because we hold that the temporary caretaker in this case did not possess the dog with the requisite proprietary control to be deemed the dog's owner or keeper, we reverse that portion of the Court of Appeals opinion allowing a common-law strict liability cause of action. However, a negligence cause of action may be maintained against a person in temporary possession of a domestic animal, as long as there is a genuine issue of fact regarding the requisite elements of such a claim. We therefore affirm the Court of Appeals decision to allow the plaintiff's action to go forward under this theory.

I

Most of the facts of this case are not in dispute. On May 1, 1988, Robert Thor went to the home of his son and daughter-in-law, Thomas and Patricia Thor. Robert Thor owned the property, which he rented to his son and his family, and had come to visit his grandchildren and supervise some grading in the backyard that afternoon. When Robert Thor arrived, two neighbor children, Rachael and Nicole Trager, were playing in the Thor's backyard with Thomas and Patricia Thor's children and the Thor's English sheepdog, Chadwick.

Shortly after his arrival, Robert Thor agreed to supervise the home while Thomas and Patricia Thor left to do some shopping. Before leaving, Thomas and Patricia placed Chadwick in the house. When the workman arrived to begin grading the backyard, Robert Thor put the dog in a bedroom and shut the door before going outside. This was done as a precaution against Chadwick escaping through the front door and running loose in the neighborhood. At this point there are disputed facts with regard to whether the Trager children were asked to go home or if Rachael Trager was given permission by Robert Thor to use the bathroom in the Thor residence. What is not disputed, however, is that Rachael Trager ended up in the Thor house, where she was bitten and scratched by Chadwick.

During discovery, Robert Thor indicated that he had knowledge of an incident before that in question where Chadwick had bitten a child. It was Mr. Thor's opinion that the dog had been antagonized and provoked in that instance.

Randy Trager, as next friend of Rachael, and Randy and Brenda Trager, Rachael's parents, individually, filed suit against Thomas and Patricia Thor and Robert Thor to hold them liable for the injuries inflicted by Chadwick. ¹ The Court of Appeals having reversed the trial court's summary disposition of the claims against Robert Thor, the issues presented are whether the plaintiffs state a claim upon which the relief sought can be granted on a theory of strict liability or negligence. ²

II

There has long existed at common law a cause of action against possessors of certain domestic animals ³ for harm caused by those animals, regardless of fault. This common-law theory of strict liability ⁴ is accurately stated in 3 Restatement Torts, 2d, § 509, p. 15, as follows:

(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.

(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.

Strict liability attaches for harm done by a domestic animal where three elements are present: (1) one is the possessor of the animal, (2) one has scienter of the animal's abnormal dangerous propensities, and (3) the harm results from the dangerous propensity that was known or should have been known. It is the first of these elements that is at issue in the present case.

A "possessor" of a domestic animal has been interpreted to encompass an "owner" or "keeper." Knowles v. Mulder, 74 Mich. 202, 41 N.W. 896 (1889), Kennett v. Engle, 105 Mich. 693, 63 N.W. 1009 (1895). However, plaintiffs do not here claim that Robert Thor is Chadwick's owner, and that characterization clearly cannot be drawn simply from the status of temporary caretaker. ⁵ Thus the focus of the present inquiry regarding strict liability is whether the temporary caretaker of a domestic animal can be considered a "keeper" as a matter of law.

In defining the term "keeper," it is instructive to examine the rationale for imposing strict liability for harm done by domestic animals. Liability is not imposed because of a failure to restrain the animal, since the utmost care in that regard is not a defense to liability. Knowles, supra, 74 Mich. at p. 206, 41 N.W. 896. Therefore, negligence analysis in this instance, even regarding the keeping of an abnormally dangerous animal, is improper. The burden of the loss under the common-law rule is instead allocated on an equitable basis to the party who has introduced the potential danger into the community, and either knows of the animal's abnormal propensity or has had the animal long enough to be chargeable with notice of its dangerous habits. 3 Harper, James & Gray, Torts (2d ed.), § 14.11, p. 269; Prosser & Keeton, Torts (5th ed.), § 76, pp. 541-543. The liable party is deemed to have chosen to expose those around him to the abnormal danger posed by the animal he chooses to keep and must, as a consequence, shoulder any costs resulting from that danger.

In order for such allocation to be equitable, the liable party must have sufficient custody and sufficient control of the animal to assess whether a risk is presented by an abnormal propensity and to decide whether an animal should be brought into or remain in the community. It is this proprietary control, akin to ownership, that we hold must be present to deem a party a keeper, and potentially liable, under the common-law strict liability principle.

The thread of proprietary control can be found in Michigan cases that have assessed which parties were keepers under former dog bite statutes. While these statutes imposed liability on both owners and keepers without regard to whether the owner or keeper knew of the animal's propensities, ⁶ they provide useful guidance regarding the level of control necessary to impose the responsibilities of keeper status.

In Burnham v. Strother, 66 Mich. 519, 33 N.W. 410 (1887), the defendant, while acknowledging he was the owner of a dog, was held not to be its keeper because the dog had been enticed away from the defendant and kept by the plaintiff's father. Id., at p. 520, 33 N.W. 410. The Court approved an instruction that liability for an injury inflicted by the dog was to be imposed on the basis of where the dog "really lived." Id., at p. 521, 33 N.W. 410. The charge distinguished between visits by a dog and the situation in which the dog was living at the home of a person who had undertaken to control its actions. ⁷ The plaintiff's father had chosen to bring the animal to his property and expose the plaintiff to any danger the dog might pose. The father, therefore, became the keeper to whom the cost of the injury was to be fairly allocated.

Similarly, in Wetzel v. Bolster, 169 Mich. 43, 134 N.W. 1099 (1912), it was held to be proper to instruct the jury that the owner of a dog was not its keeper where the dog had been given to a third party to keep approximately six weeks before the plaintiff's injury. It was the third party who was the keeper of the dog in this case because he had brought the animal to his premises and exposed those in his community to potential injury.

Finally, in Jenkinson v. Coggins, 123 Mich. 7, 81 N.W. 974 (1900), the defendant was found to be the keeper of a dog owned by her son where the son and dog lived on property that was under the defendant's absolute control. This control of the premises where the dog lived was clear evidence that the defendant possessed a proprietary status akin to ownership necessary to be found a keeper.

We do not mean to suggest by our analysis that ownership of the property where the animal resides is dispositive in the determination of keeper status. A person may have sufficient control of a domestic animal that is cared for on the owner's property to be subject to liability as a keeper. ⁸

Possession of an animal sufficient to be found a keeper, however, "cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession." Hancock v. Finch, 126 Conn. 121, 123, 9 A.2d 811 (1939) (interpreting "keeper" under a statutory definition encompassing an owner, harborer, or party in possession of any dog). Thus, in McEvoy v. Brown, 17 Ill.App.2d 470, 150 N.E.2d 652 (1958), a grandmother who had fed and watered a puppy brought to her house by her grandsons, whom the grandmother had agreed to watch for the afternoon, was held not to be the animal's keeper. The court affirmed that such a perfunctory act would not constitute keeping of the puppy, even though it was performed at...