Overview  

In its recent opinion in Augsburger v. Homestead Mutual Ins. Co., 2014 WI 133 (Dec. 26, 2014), the Wisconsin Supreme Court undertook a narrow interpretation of the “dog bite” statute.  According to the Court, imposing liability on a landowner for “harboring” a dog requires more than mere ownership of the land on which a dog resides.  A Court must consider the totality of the circumstances to determine whether the property owner has exercised the requisite control over the property to be considered a “harborer,” or a “statutory owner” under Wis. Stat. § 174.02.

Background

Wis. Stat. § 174.02, colloquially known as the “dog bite” statute imposes strict liability on dog owners for damages or injuries caused by their dog to another human, animal, or property.  Generally, a homeowner's insurance policy and some forms of renter's insurance will pay the damages in dog bite cases in Wisconsin.  However, the prevalence of these claims and the amounts paid related to such claims are on the rise, some claims can often exceed $25,000 dollars due to the double damages provision in the statute.[1]

Although Wis. Stat. § 174.02 is a strict liability statute, there is a lack of clarity on who qualifies as an “owner” of a dog, especially in situations where the owner is a landowner or landlord.  Typically, Wisconsin permits suits against landlords only in situations where the landowner or landlord also “owns”, “harbors”, or “keeps” the dog.[2]

Facts of the Case

The Augsburger case presented a peculiar set of facts as applied to the dog bite statute.  George Kontos purchased a home in Larsen, WI for his daughter, Janet Veith, and her family to live on (her family included two horses and several dogs).  Despite owning the property, Kontos lived in a separate residence and made only infrequent appearances at the Veith household.  Kontos did not accept rent from the Veiths, nor did he provide regular maintenance or upkeep on the property.  Kontos was aware that there were several dogs living on the premises but the record demonstrated that Kontos had almost no involvement in providing for or having any responsibility in the care of the dogs.

In June of 2008, while on the property owned by Kontos where the Veiths were living, Augsburger was attacked by four dogs and suffered injuries.  Augsburger brought suit against Kontos as the owner of the land under § 174.02.  Both the circuit court and the Court of Appeals ruled in favor of Augsburger, holding that Kontos was an “owner” of the dogs under the statute because an owner includes anyone who “owns, harbors, or keeps” a dog.  The Court of Appeals distinguished Kontos' ownership of the land from a typical landlord-tenant relationship and found that he “harbored” the dogs by providing shelter and lodging.

Decision

In a decision by Justice Ann Walsh Bradley, the Court identified the overriding issue to be whether Kontos ought to be considered a “statutory owner” of the dogs to impose strict liability and damages under the law.  In order to determine whether Kontos could be liable under Wis. Stat. § 174.02, the Court analyzed a neighboring statute, § 174.001(5), which defines owner for purposes of the chapter.  In was undisputed that Kontos was neither an owner nor a keeper of the dogs; however, the issue came down to whether he was a “harborer” of the dogs.  The Court distinguished a “harborer” from a “keeper” in stating that “harboring means more than to afford lodging [or] to shelter or give refuse to a dog.”[3]

According to the majority, determining whether one is a harborer is based on a consideration of the totality of circumstances.  Being a mere owner of the property on which a dog resides is insufficient to establish ownership under the statute.  The Court discussed a number of factors that are likely to bear on whether one is a “harborer” of a dog:

• The level of control the property owner exercises over the property
• Whether the property owner lives in a separate residence than the property in question
• Whether the property owner provides direct shelter, food, or furnishings for the dog(s)

Analyzing these factors and others in light of the totality of circumstances, the Court found that Kontos was not a harborer; thus, not a statutory owner of the dogs.  One important factual finding that played a key role in the Court's decision was their finding that the relationship between the Veiths and Kontos was more akin to a traditional landlord-tenant relationship, rather than that of an owner-houseguest relationship, as the Court of Appeals found.

Despite the familial relationship between the parties and the fact that the living arrangement was rent-free, Kontos exercised very limited control over the premises.  Prior cases have generally held that landlords are not liable for the actions of their tenants dogs.[4]In combination with their finding that the living situation was more akin to a landlord-tenant relationship, the Court also placed great weight on the fact that Kontos lived in a separate residence, which bolstered the fact that Kontos lacked the requisite control over the premises to be found liable under the statute.  Relying on language from the Restatement, the Court also dismissed the argument that Kontos has the requisite level of control over the property because he possessed the power to exclude the dogs, but failed to do exercise that power.[5]

Potential Future Implications

Although this case presented a rather unusual set of facts, the Court's holding seems to suggest that in the future it will take a narrow interpretation of a “statutory owner” under the dog bite statute.  It is apparent that mere ownership of land on which a dog resides will not be sufficient to impose strict liability.  Specifically, in determining whether a property owner is a “keeper” or a “harborer,” the Courts will likely undertake a rather vigorous factual inquiry to assess the circumstances under which a property owner exercises control over the property and/or the pet in question and likely rely on some of the factors discussed above.

This result begs the question of whether or not Wis. Stat. § 174.02 remains a strict liability statute.  Before the damages aspects of the statute can be applicable, a plaintiff must demonstrate that the owner is a “statutory owner,” a determination of which, will seemingly require an examination of the totality of circumstances to assess the owner's control over the premises.

The Court's reliance on establishing statutory ownership under Wis. Stat. § 174.001(5) may effectively operate to limit the “bite” of § 174.02.  The result may operate to temper some of the potentially harsh results occasioned by accepting verbatim a statute's plain terms.  Whether or not this narrowing of the impact of the dog bite statute will have a ripple effect in the future remains to be seen.  However, the owner distinction identified by the Court in Augsburger seems likely to curb the strict liability function of the statute, and create additional obstacles to recovering damages for injuries.

For more information please contact Attorney John Healy at [email protected] or (608) 662-1159.

[1] Wis. Stat. § 174.02(1)(b)

[2] Wis. Stat. § 174.001(5)

[3] See Patterman v. Patterman, 173 Wis. 2d 143, 149 n.4, 496 N.W.2d 613 (Ct. App. 1992).

[4]See Smaxwell v. Bayard, 2004 WI 101, 274, Wis. 2d 278, 682 N.W.2d 923

[5] Augsburger, 2014 WI 133 at ¶ 33.

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