The Michigan Court of Appeals has reversed a trial court’s order to euthanize a pit bull for attacking another dog, finding the pit bull did not meet the statutory definition of a “dangerous animal.”

The case, In re Tato (Docket No. 353884), involved a pit bull named Tato. The dog is owned by Katie and Ray Lopez. Tato attacked a smaller dog, Piper, while Piper was being walked in the Lopezes’ neighborhood. Part of Piper’s ear was injured as a result of the attack.

The Allegan County magistrate, district court and circuit court agreed that Tato should be euthanized because he was a “dangerous animal” under the Dangerous Animals Act, MCL 287.321, et seq. That statute says, in part:

(a) “Dangerous animal” means a dog or other animal that bites or attacks a person, or a dog that bites or attacks and causes serious injury or death to another dog while the other dog is on the property or under the control of its owner. However, a dangerous animal does not include any of the following:

(i) An animal that bites or attacks a person who is knowingly trespassing on the property of the animal's owner.

            (ii) An animal that bites or attacks a person who provokes or torments the animal.

(iii) An animal that is responding in a manner that an ordinary and reasonable person would conclude was designed to protect a person if that person is engaged in a lawful activity or is the subject of an assault.

            (iv) Livestock.

…

(e) “Serious injury” means permanent, serious disfigurement, serious impairment of health, or serious impairment of a bodily function of a person.

The Court of Appeals reversed, finding that Tato’s behavior did not meet the definition of a dangerous animal because the ear injury that Piper suffered was cosmetic and did not affect the dog’s hearing or health. Further, Tato did not attack any person, the appeals court emphasized.

Judge Brock A. Swartzle wrote the published opinion, joined by Judge Michael F. Gadola and Judge Thomas C. Cameron.

The State Bar of Michigan Animal Law Section filed an amicus brief in the case, which was written by Speaker Law attorney, Andrea Muroto Bilabaye.

Background

In April 2019, a group of people traveled by the Lopezes’ home while walking their dogs. Tato, who was inside the house, pushed out a window screen, jumped out the window and ran toward Piper, a smaller dog. Tato bit down on Piper’s ear and shook the dog back and forth. The people in the group hit and kicked Tato, trying to get him to release Piper. At some point, one person was on the ground holding onto Piper and was able to put her hand in Tato’s mouth and pull Piper’s ear out of Tato’s mouth. Tato pushed off that person’s legs using his back paws in an attempt to get to Piper. Ray Lopez eventually got to Tato and removed him. As a result of the attack, Piper suffered an injury to one ear. The injury was described by several witnesses as a “nick” of Piper’s ear, which created a “crooked ear” and left the edge of that ear jagged. Piper was taken to an emergency veterinarian but did not receive any stitches. After a few weeks and a trip to the groomer, Piper’s injured ear looked even with her uninjured ear.

The incident was described as a “dog-on-dog attack” and it was acknowledged that Tato did not attack any person. One person suffered minor scrapes on her knees, hip and hand as a result of the incident. No other animals or people were injured during the incident.

A sheriff’s deputy eventually took Tato from the Lopezes’ home and placed him in a shelter. The Allegan County Sheriff’s Department Animal Control filed a complaint, seeking to destroy Tato because he was a dangerous animal. The magistrate concluded that Tato was a dangerous animal and ordered that he be euthanized. The Lopezes appealed to the district court, which found that Tato was a dangerous animal because the dog had attacked Piper and the people around Piper. Based on “disturbing” testimony from the Lopezes - that they did not consider Tato’s behavior to be aggressive - and the “callous[ness]” demonstrated by them regarding the incident, the district court ordered that Tato be euthanized.

The Lopezes appealed to the Allegan County Circuit Court, which held the district court erred in finding that Piper suffered a serious injury in the attack. However, the circuit court concluded that Tato did attack a person by “work[ing] against” that person when he dragged her across the cement, resulting in her knees being scraped. Therefore, the circuit court agreed that Tato was a dangerous animal as defined in MCL 287.321 and should be euthanized. The circuit court further agreed that the “callousness” demonstrated by the Lopezes “and their belief that Tato did nothing wrong” was sufficient evidence to support the finding that Tato was likely to cause serious injury or death to a person in the future.

The Lopezes appealed.

Not A Dangerous Animal

On appeal, the Lopezes argued the circuit court erred in finding that Tato was a dangerous animal under the Dangerous Animals Act.

The Court of Appeals agreed and reversed the order to euthanize Tato.

In its analysis, the Court of Appeals examined the Dangerous Animals Act (MCL 287.321) in detail, explaining that the statute’s purpose is “to prevent dangerous animals from running at large or injuring persons.”

The Court of Appeals also scrutinized the definition of “dangerous animal” in the statute, noting the statute does not define the word “attack.” However, “attack” in MCL 287.321 has previously been defined as “to set upon or work against forcefully,” “to begin to affect or to act on injuriously,” “[t]o set upon with violent force” and “[t]o act on in a detrimental way, cause harm to,” the appeals court said, citing People v Ridge, 319 Mich App 393 (2017).

“Taken together, these definitions require targeted conduct by the attacker against the attackee,” the Court of Appeals wrote. “Thus, an attacker ‘attacks’ its target, not individuals or animals who are simply in the area or incidentally hurt as a result of the attack.”

Here, it was determined that Tato was a dangerous animal because he attacked a person by “work[ing] against” her when he pulled Piper and, as a result, that person was dragged on the cement, the Court of Appeals observed. However, “an ‘attack’ requires a finding that the attacker targeted the attackee. It is undisputed that Tato’s focus during the incident was on Piper, not [a] … person,” the appeals court emphasized. “While Tato did scratch [the person’s] hand and cause her to scrape her hip and knees, these minor injuries were a result of Tato attacking Piper, not from Tato attacking [the person]. Thus, Tato did not attack [a person] within the meaning of the statute. Nor has there been any evidence or argument that Tato bit [that person] or another person. Given this, the trial court erred by concluding that Tato was a dangerous animal under the statute.”

Next, the Court of Appeals addressed the county’s assertion that Tato was a dangerous animal because Piper suffered a “serious injury.” The appeals court specifically looked at MCL 287.321(e) and its definition of serious injury as a “permanent, serious disfigurement, serious impairment of health, or serious impairment of a bodily function of a person.”

According to the Court of Appeals, while Piper suffered a “crooked ear” during the attack, the record established that, a few weeks after the attack, Piper’s injury was hardly noticeable. “Importantly, there is no evidence that the injury affected Piper’s hearing or otherwise impaired her health. These injuries do not amount to a disfigurement or impairment that could be deemed to rise to the level of a ‘serious injury’ under the statute. Thus, the circuit court correctly concluded that Piper did not suffer a serious injury.”

Therefore, the Court of Appeals concluded that Tato was not a “dangerous animal” under the statute because he did not bite or attack a person and he did not seriously injure an animal. As a result, the appeals court reversed the order to euthanize Tato and remanded the case.

“We note, however, that even though Tato is not a dangerous animal as defined by statute, it is concerning that Tato attacked another dog in this manner and the Lopezes were apparently indifferent to their dog’s aggressive behavior,” the Court of Appeals added. “Ray [Lopez] made clear to the district court that he would take whatever precautions were necessary to counteract Tato’s aggression and protect people and animals in the future, and we expect that both he and Katie [Lopez] will follow through with these representations made to the district court.”