Dog Not ‘Provoked’ To Bite Boy: Plaintiff Should’ve Been Granted Summary Disposition

The trial court in this dog-bite case improperly granted summary disposition to the animal’s owners, the Michigan Court of Appeals has ruled, because the dog was not provoked by the victim.

Instead, the plaintiff should have been granted summary disposition on the issue of liability under Michigan’s dog-bite statute, the Court of Appeals held in Radick v Rouse (Docket No. 351200).

The plaintiff sued the defendants after their dog, Buddy, bit her 5-year-old son, Luke. The plaintiff claimed the defendants were liable for the boy’s injuries under the dog-bite statute (MCL 287.351). The defendants moved for summary disposition, arguing the plaintiff’s claim should be dismissed because the dog was provoked after being shocked by an invisible electric fence.

The plaintiff, however, asserted the defendants did not have a valid defense because there was no genuine issue about whether her son had provoked the dog. Alternatively, the plaintiff argued there was a genuine issue about whether the dog was actually provoked by the electric fence before biting the boy.

The Tuscola County Circuit Court ruled the dog had been provoked by the electric fence and granted summary disposition for the defendants.

The Court of Appeals reversed.    

“The trial court erred when it concluded that defendants were entitled to summary disposition because Buddy was ‘provoked’ by defendants’ electric fence,” the Court of Appeals wrote. “Rather, because there is no dispute that Luke did nothing to provoke Buddy, plaintiff was entitled to summary disposition on the issue of liability pursuant to MCR 2.116(I)(2).”

Judges Kathleen Jansen, Deborah A. Servitto and Michael J. Riordan were on the panel that issued the unpublished opinion.

Dog Bite

Retha Taylor was walking with her 5-year-old grandson, Luke, when they saw the neighbor, Misty Rouse, in her vehicle. As they walked up the driveway and approached Misty’s vehicle, Retha saw one of Misty’s four dogs, Buddy, standing next to the vehicle. Misty exited her vehicle to greet Retha and Luke.

According to Misty, Buddy then jumped on Retha because he was “excited to see somebody new.” Retha pushed Buddy away. At this moment, Buddy jolted, lunged forward and knocked Luke to the ground, biting him in the arm several times. Retha and Misty grabbed Buddy by his collar and freed Luke’s arm from the dog’s mouth. After Buddy let go of Luke’s arm, Misty’s husband, Frank, took Buddy into the house. Retha carried Luke back to her house.

Tuscola County Animal Control visited the Rouse’s three days later. Frank told the officer they had an electric fence and that, when Retha pushed Buddy away, she pushed him into the electric fence and the dog was reacting to the electric shock when it bit Luke. Misty also indicated she thought Buddy had been shocked by the electric fence because the dog jerked and lunged before biting Luke.

Luke also provided a statement. He said Buddy “looked angry because his face clenched” before biting him.

The plaintiff, Rickelle Radick, acting as Luke’s conservator, sued the defendants, Misty and Frank Rouse, claiming they were liable for Luke’s injuries under the dog-bite statute. The plaintiff claimed she was entitled to summary disposition because the statute imposes strict liability unless the dog was provoked. The defendants filed a motion for summary disposition, asserting that Buddy was indeed provoked because he was shocked by the electric fence when he bit Luke.

The Tuscola County Circuit Court ruled that the defendants had a defense under the dog-bite statute because Buddy was provoked. The trial court granted the defendants’ motion for summary disposition, finding that the plaintiff did not offer enough evidence to show that Buddy had not been provoked by the invisible electric fence.

The plaintiff appealed.

What Is ‘Provocation’?

On appeal, the plaintiff argued the trial court should not have granted summary disposition to the defendants because the term “provocation” in MCL 287.351(1) is limited to provocation of a dog by the victim of the dog bite – not outside sources of provocation, such as an electric fence.

“We agree,” the Court of Appeals said. “The scope of the term ‘provocation’ in MCL 287.351(1) is a matter of statutory interpretation. … We have acknowledged that the purpose behind MCL 287.351(1) ‘appears to be to hold the owner of a dog liable for bite injuries to a lawful victim who did not provoke the dog.’”

Further, in Koivisto v Davis, 277 Mich App 492 (2008), “we held that a provocation defense was unavailable when the victim responded in defense to an already provoked dog, but did not act to provoke the dog in the first place,” the Court of Appeals explained. “We reasoned that ‘[t]he “provocation” defense assumes that the offending dog was not already in a provoked state or … a state of attack, and that the victim did something to provoke the dog.’”

Here, it was “undisputed” that Luke did nothing to provoke the dog, the Court of Appeals observed. “However, the trial court still permitted defendants assert a provocation defense because ‘the dog was otherwise provoked as contemplated in the statute.’ The trial court’s ruling was inconsistent with our interpretation of the dog-bite statute in Koivisto … and therefore, we reverse the trial court’s decision.”

Meanwhile, the defendants argued the statutory interpretation in Koivisto was contrary to the plain language of the statute. To support this claim, the defendants relied on Brans v Extrom, 266 Mich App 216 (2005), where the appellate court looked to the Black’s Law Dictionary definition of provocation because the term is not defined in the dog-bite statute. Black’s Law Dictionary defines provocation as: “The act of inciting another to do a particular deed. That which arouses, moves, calls forth, causes, or occasions.”

“In [Brans], the victim accidentally stepped on the defendants’ dog’s tail, and the dog bit her,” the Court of Appeals noted. “We held that the victim’s unintentional act could constitute provocation because the definition of provocation does not account for the intent of the actor but only ‘the nature of the act itself and the relationship between that act and an outcome.’”

However, Brans is “factually distinguishable” from present case, the Court of Appeals stated. “Brans concerned the victim’s unintentional act – not the act of another force, as in the case before us. Thus, Brans … does not compel a contrary outcome. Moreover, although the definition of ‘provocation’ as stated in Brans … does not specify that plaintiff must be the actor who incites another to do a particular act, as we stated in Koivisto, ‘[s]tatutory language should be construed reasonably, in a manner that is consistent with the purpose of the legislation,’ and we have expressly limited ‘provocation’ to refer to the victim’s conduct ….”

Therefore, the trial court incorrectly found that Buddy was “provoked” by the electric fence and erred in granting summary disposition for the defendants,” the Court of Appeals concluded. “Rather, because there is no dispute that Luke did nothing to provoke Buddy, plaintiff was entitled to summary disposition on the issue of liability pursuant to MCR 2.116(I)(2). Accordingly, we reverse the trial court’s opinion and order granting summary disposition in favor of defendants and remand this case to the trial court to enter an order granting partial summary disposition in favor of plaintiff on the issue of liability.”