Michigan’s Strict Liability Dog Bite Statute Doesn’t Mean Defendants Should Just Roll Over
Americans love their dogs. According to the American Veterinary Medical Association (AVMA), the United States had between 83,739,829 and 88,853,254 dogs in 2022, with 44.6% of households owning at least one. But even very good boys (and girls) can have very bad moments. As intelligent, loyal, and well-trained as dogs may be, they are still animals. This means they remain prone to unpredictable – and sometimes violent or aggressive – behavior. Some dogs may be naturally inclined towards aggression and hostility, while other generally well-behaved dogs may unexpectedly bite, claw, or jump when they feel surprised or threatened.
A dog, especially a large or strong one, that acts out and attacks a person can inflict severe, sometimes permanent, injuries, disfigurement, and trauma. In some cases, a dog bite or attack can be fatal.
In addition to a dog attack’s physical toll, the financial costs associated with dog-inflicted injuries and deaths can be astronomical. Dog attack injuries can require costly and painful medical treatment, rehabilitation, and reconstructive surgery, on top of physical and mental trauma. Someone must pay for that damage, and it is often the dog owner’s homeowners insurance company. According to the Insurance Information Institute and State Farm, liability claims related to dog bites and other dog-related injuries cost homeowners insurance companies $1.12 billion in 2023. Michigan had the fifth-highest number of such claims by state.
Strict Statutory Liability for Dog Bites in Michigan
However, how and when a dog owner (or their insurers) will be held liable for the injuries and losses caused by their pet depends on the state’s law where the attack happened. In Michigan, we have some of the strictest dog bite laws in the country. While some states require an injury victim to show the dog owner was negligent in restraining or controlling their dog, and other states give a break to owners whose dog has never acted out violently before, Michigan imposes statutory liability on dog owners for bites regardless of the dog’s past behavior or the owner’s conduct. This is in addition to claims of common law cause(s) of action that a victim can make for injuries caused by a dog attack, even if it did not involve a bite.
MCL 287.351 provides that if a dog bites a person without provocation while the person is on public property or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.
Limits on Strict Statutory Liability for Dog Bites in Michigan
While Michigan’s statute seemingly means that owners and insurers will be in the strict liability doghouse after a dog bite incident, there are limits on the scope of that liability and defenses available to defendants.
First, strict liability only applies to unprovoked dog attacks. Second, the statute only addresses injuries caused by a dog bite. It does not apply to injuries caused by scratches, other physical contact, or injuries incurred while trying to protect oneself or escape a dog attack. But that does not mean owners are in the clear for such attacks and injuries.
Common Law Liability Retained for Dog Attacks
Michigan courts have recognized that the state’s strict liability statute specifically preserves the common law liability of the dog’s owner for damages it caused.
This includes a cause of action that remains for common law strict liability and/or the negligent failure to exercise ordinary care in controlling or restraining a dog. What constitutes ordinary care depends on the owner’s knowledge of the dog’s propensity for aggressive or violent behavior.
The Michigan Court of Appeals explained in Hiner v. Mojica, 271 Mich App 604 (2006), the legal framework of common law strict liability and/or negligence in Michigan, and the defenses that apply.
Common law strict liability is determined where there is a finding that the dog owner had knowledge of the animal’s “abnormal dangerous propensities”, and those tendencies resulted in harm. Id. at p. 610. This knowledge though does not include behavior of the dog that is considered “common behavior” for the canine such as “pushing, barking, and jumping.” Id. at pg. 611. This type of behavior is not sufficient to demonstrate that the animal is “abnormally dangerous or unusually vicious,” leading to strict liability. Id. at p. 610-611. Thus, it is a defense to a strict liability cause of action, to show that the behavior of the dog was consistent with that of dogs in general and was not abnormal.
For claims of negligence, the court explained that prior knowledge of the animal’s dangerous propensities is not necessarily required. Yet, if the owner is aware of behavior being exhibited by the dog lending way to a foreseeable risk of harm, then there is a duty of the owner to “reasonably guard against that foreseeable danger.” Id. at p. 613, quoting Trager v Thor, 445 Mich 95, 106.
The court explained:
Certain domestic animals are regarded as so unlikely to do substantial harm that their owners have no duty to keep them under constant control. Id. at 105-106. Thus, the mere failure to do so would not constitute a breach of the duty of care. Id. “However, if the possessor of such an animal . . . has knowledge of some dangerous propensity unique to the particular animal, or is aware that the animal is in such a situation that a danger of foreseeable harm might arise, the possessor has a legally recognized duty to control the animal to an extent reasonable to guard against that foreseeable danger.” Id. at 106; see also 3 Restatement Torts, 2d, § 518, comments g, j, and k, pp 31-33. Accordingly, the owner of such an animal may be held liable in negligence
“when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen.” [Id., quoting Arnold v Laird, 94 Wn. 2d 867, 871; 621 P.2d 138 (1980).]
There are several unpublished cases where courts have granted summary disposition in favor of the defendant regarding injuries alleged to be caused from a dog interaction.
In the case of Bartholomew v Hazy, Unpublished Mich Ct of Appeals, Docket no. 207577 (Decided March 9, 1999), the court granted summary disposition finding there was no basis to support strict common law liability. There was evidence the dog at issue barked in the past, but barking is not an abnormal tendency, nor dangerous, and so this was insufficient to impart strict liability.
The negligence claim also failed, because there was no evidence to prove that the dog owner knew or had reason to know that the dog would not only bark, but would then charge the plaintiff, causing the plaintiff to flee and become injured.
In the case of Kirkman v Ellis, Unpublished Mich Ct of Appeals, Docket no. 318406 (Decided December 18, 2014), the facts involved a 20-pound dog who jumped up on the kitchen door that swung open and struck the plaintiff, causing her to fall down several steps. The trial court granted summary disposition in defendant’s favor. The plaintiff alleged there was liability based on the dog-bite statute, MCL 287.351, and, based on common law theories of strict liability and negligence.
The plaintiff withdrew the claim of statutory liability under MCL 287.351, as there was no dog bite. Regarding strict common law liability, the plaintiff failed to prove that the owner of the dog knew of any unusual and dangerous tendencies of the dog, citing the cases of Trager, supra, and Hiner, supra.
The evidence showed the dog was known to jump, but that is normal dog behavior on which liability cannot attach. “Dogs jump on doors for a variety of reasons…jumping on the kitchen door reflects typical canine behavior…” Id. at p. 6-7.
As to negligence, the court said a dog owner does not owe a duty to keep their dog under “constant control”, unless the owner knows that the dog has a “dangerous propensity unique to the particular animal”, where there is “a danger of foreseeable harm [that] might arise”. Id at p. 7-8. In Kirkman, the jumping dog had not caused injuries in the past, and so, the injury sustained was not foreseeable and liability did not attach.
In the case of Smith v Conroy, Unpublished Mich Ct of Appeals, Docket no. 329022 (Decided February 2, 2017), the court granted summary disposition to the defendant finding that Edie the dog, while known as a barking dog, had never attacked anyone. When the plaintiff came to deliver a Fed Ex package to the house the dog started to bark, the plaintiff backed away, and then fell backwards sustaining injuries. The court held, “Defendant owed no duty to plaintiff to exercise additional control over Edie because it was not reasonably foreseeable that Edie could harm plaintiff.” Id. at p. 5.
Given the costs associated with dog attacks — $58,543 was the average cost for dog bite insurance claims in 2023 according to the AVMA – insurers and owners should analyze such claims carefully and consider the plaintiff’s conduct and the nature of the incident before simply rolling over and settling.