2011 WI App 33
court of appeals of
published opinion
Case No.: |
2009AP2457 |
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Complete Title of Case: |
†Petition for Review filed |
Opinion Filed: |
February 8, 2011 |
Submitted on Briefs: |
January 4, 2011 |
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JUDGES: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was
submitted on the briefs of Theresa B. Laughlin, |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-third-party
plaintiff-respondent, the cause was submitted on the briefs of Daniel R.
Peters of Pietz, VanderWaal,
Stacker & Rottier, S.C., On behalf of the third-party-defendant-respondent, the
cause was submitted on the brief of Michael
Vescio of SmithAmundsen LLC, |
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2011 WI App 33
COURT OF APPEALS DECISION DATED AND FILED February 8, 2011 A.
John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Carissa A. Erdmann, by her Guardian ad Litem, Theresa B. Laughlin,
Plaintiff-Appellant, v. Progressive Northern Insurance Company,
Defendant-Third-Party
Plaintiff-Respondent, BadgerCare/Medicaid Managed Care Program, c/o Security Health Plan of Wisconsin, Inc., Defendant, v. Allstate Property and Casualty Insurance Company, Third-Party
Defendant-Respondent. |
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APPEAL
from judgments of the circuit court for
Before
¶1 BRUNNER, J. Carissa Erdmann, by her guardian
ad litem, Theresa Laughlin, appeals summary judgments in favor of Progressive
Northern Insurance Company and Allstate Property and Casualty Insurance
Company. She claims the circuit court
erroneously concluded that judicial public policy bars her strict liability
claim under
¶2 Allstate alternatively claims it is entitled to summary judgment because its insured was not a statutory owner for purposes of the dog injury statute. We conclude Allstate’s insured is a statutory owner because she exercised dominion over the dog, sheltered the dog, provided water, and was generally responsible for the dog’s well-being at the time Erdmann was bitten.
BACKGROUND
¶3 Erdmann filed a complaint against Progressive alleging that
on June 3, 2007, just before Erdmann’s fourth birthday, she was bitten by
a dog named Chase while at the home of Carole Jorgensen. The complaint alleged that the dog was owned
by Jorgensen’s daughter, Stacy Plamann, and that Progressive was Plamann’s
homeowners’ insurer. Erdmann sought to
hold Plamann strictly liable for her injuries under
¶4 Progressive and Allstate filed a motion for summary judgment,
asserting that public policy barred liability against both Plamann and
Jorgensen. The supporting affidavits
included deposition testimony from Jorgensen, who stated that on June 3 she was
babysitting her grandchildren and Erdmann, and also taking care of Chase. Jorgensen testified that the children were in
a “mad rush” to get out of the house to the swimming pool. When Erdmann “went running down the hallway
she tried to stop from sliding and Chase was laying in the area … and she ran
right into him. As she fell he tried to
get up and get out of the way and that’s when it ended up she got bit.” Jorgensen testified that Chase was laying
down, but she was ambiguous as to whether Chase was sleeping. Nonetheless, Progressive and Allstate argued
that Jorgensen’s testimony regarding Chase’s dormant state was sufficient to
bar liability under Alwin v. State Farm Fire & Cas. Co., 2000 WI App 92, 234
¶5 The circuit court granted Progressive and Allstate summary judgment and dismissed Erdmann’s claims, reasoning that public policy barred her recovery. Erdmann appeals.
DISCUSSION
¶6 We review
a grant of summary judgment de novo using the same standard and methodology as
the circuit court. Green Spring
Farms v. Kersten, 136
¶7 Ordinarily,
we would examine the pleadings to determine whether a claim for relief has been
stated, and then assess whether those pleadings demonstrate a factual
issue. Green Spring Farms,
136
¶8 In
(1) the injury is too remote from the negligence; (2) the recovery is wholly out of proportion to the culpability of the negligent tort-feasor; (3) the harm caused is highly extraordinary given the negligent act; (4) recovery would place too unreasonable a burden on the negligent tort-feasor; (5) recovery would be too likely to open the way to fraudulent claims; [or] (6) recovery would enter into a field that has no sensible or just stopping point.
Behrendt v. Gulf Underwriters
Ins. Co., 2009 WI 71, ¶29, 318
¶9 The circuit court here relied on two decisions in which
Wisconsin courts used judicial public policy to bar liability for injuries
caused by dogs: Alwin and Fandrey. In the past, we have repeatedly cautioned
that the application of public policy to bar liability must be done on a
“case-by-case” basis. See Alwin,
234
¶10 Alwin
was the genesis of the “sleeping dog” doctrine, which Progressive and Allstate
believe bars Erdmann’s recovery. In that
case, we used public policy to relieve a tortfeasor of liability for injuries
sustained by her mother, who tripped and fell over a sleeping dog. Alwin, 234
¶11 Different facts compelled our supreme court to bar recovery for
a dog bite in Fandrey. In that case, a
three-year-old girl and her mother entered a friend’s unlocked home without an
invitation or notice. Fandrey,
272
¶12 This case does not involve injuries caused by a dormant dog or sustained by an uninvited guest. Unlike liability in Alwin, liability in this case hinges on an affirmative act of the dog. Chase was not merely some “passive instrumentality;” Erdmann’s injuries were a direct result of Chase’s bite. Further, unlike the plaintiff in Fandrey, the injured party here was a welcome guest in the dog owner’s home. There is no dispute that Jorgensen agreed to watch Erdmann for the day. Alwin and Fandrey are therefore inapposite.
¶13 We next consider whether public policy bars liability under the
facts of this case. Using public policy
to preclude liability is an extraordinary matter. See Fandrey, 272
¶14 The first factor assesses whether the injury is too remote from
the negligence. There are no intervening
causes that would render Erdmann’s injury too remote from Plamann’s and
Jorgenson’s assumed negligence. See Beacon
Bowl, Inc. v. Wisconsin Elec. Power Co., 176
¶15 The
second factor precludes liability when the recovery is wholly out of proportion
to the culpability of the negligent tortfeasor.
Both Jorgensen and Plamann knew Chase would be interacting with small
children. Neither appears to have made
any effort to ensure that the children were separated from the dog. Unlike the owners in Fandrey, whom the supreme
court concluded could have done nothing further to prevent the injury, Plamann
and Jorgenson could have taken any number of steps to prevent Erdmann from
being bitten.
¶16 The
third factor analyzes whether the harm caused is highly extraordinary given the
negligent act. Erdmann’s injury is not a
highly extraordinary result of dogs and small children playing together. Our supreme court reached a similar
conclusion in Pawlowski, 322
Section 174.02 embodies a legislative judgment that those who own, harbor, or keep a dog are in the best position to reduce the risk of injury and should bear liability for any damages, rather than making those who are injured by no fault of their own suffer without compensation. It is not “highly extraordinary” that providing shelter for a dog in your home may create risks for a passerby if the dog is not properly restrained.
¶17 The fourth factor looks to whether recovery would place an
unreasonable burden on the negligent tortfeasor. Permitting Erdmann to recover does not place
an unreasonable burden on those similarly situated to Jorgensen and Plamann
because the injury in this case could have been prevented by simply separating
the dog from the children. It is not unreasonable to require that those
who allow someone else’s dog in their home take adequate steps to safeguard
visitors. Cf. Pawlowski, 322
Wis. 2d 21, ¶66 (“In allowing an unknown
dog to live in one’s home, it is not unreasonable that the homeowner take
precautions to ensure that the dog is leashed or restrained in some manner when
walking in the street.”).
¶18 The fifth factor
precludes liability when recovery would be too likely to open the way to
fraudulent claims. As the supreme court
noted in Pawlowski, 322
¶19 The
sixth public policy factor focuses on whether recovery would enter a field that
has no sensible or just stopping point.
Unlike Alwin, this does not appear to be a case in which permitting
recovery is tantamount to a “pure penalty for dog ownership.” Alwin, 234
¶20 We therefore conclude the circuit court improperly granted summary judgment in favor of Progressive and Allstate. Contrary to the circuit court’s decision, the public policy factors do not support abrogating liability in this case.
¶21 Allstate
argues it is nonetheless entitled to summary judgment because Jorgensen was not
Chase’s statutory owner for purposes of the dog injury statute. Allstate’s argument requires us to interpret
and apply Wis. Stat. § 174.001(5),
which defines an “owner” as “any person who owns, harbors or keeps a dog.” Statutory interpretation and application are
questions of law. Admanco, Inc. v. 700 Stanton Drive,
LLC, 2010 WI 76, ¶15, 326
¶22 Allstate juxtaposes two decisions in which
¶23 The facts of this case are much closer to those in Pawlowski
than those in Pattermann. For the time
that Plamann was away, Jorgensen sheltered, maintained, and protected Chase on
her premises. See Pawlowski, 322
By the Court.—Judgments reversed and cause remanded for further proceedings.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The term “strict liability” refers to a
judicial doctrine that relieves a plaintiff of the burden of proving specific
acts of negligence and protects against some defenses. Fandrey v. American Fam. Mut. Ins. Co.,
2004 WI 62, ¶9, 272