Dog Bites
The Minnesota dog bite statute is as follows:
Minn. Statutes Annotated, Section 347.22: Damages, owner liable.
If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term "owner" includes any person harboring or keeping a dog but the owner shall be primarily liable. The term "dog" includes both male and female of the canine species.
Minnesota courts have applied the statute in a manner most favorable to dog bite victims. It has been interpreted as an absolute, strict liability statute. Comparative fault is not permitted as a defense. Seim v. Garavalia (Minn. 1981), 306 N.W.2d 806, 810; Lewellin v. Huber, 465 N.W.2d 62 (MI 1991). As the court stated in Lewellin:
[L]iability is absolute. It makes no difference that the dog owner may have used reasonable care; negligence is beside the point. Past good behavior of the dog is irrelevant. Neither the common law affirmative defenses nor statutory comparative fault are available to the defendant dog owner. (The owner does, however, have the defenses of provocation and failure of the injured person to conduct himself peacefully while in a lawful place.) Whoever keeps or harbors the dog is subject to the statutory liability for the "full amount of the injury," and the dog's owner remains at all times primarily liable.
The use of the phrase "attacks or injures" in the Minnesota dog bite statute raised an interesting issue in Lewellin v. Huber, 465 N.W.2d 62 (MI 1991). A dog was loose inside a car, and wanted to get into the front seat. The driver was distracted, lost control of her vehicle, and it ran over a child who was laying in a ditch beside the road. The driver was also the dog owner. The family of the child brought a claim against the driver based upon the dog bite statute. The legal question was whether the dog bite statute applied, the focus being the law's use of the words "attack and injure." Construing just the word "attack," the court stated, "[w]hen a dog attacks, it bites; when it bites a person, it attacks." Lewellin v. Huber, 465 N.W.2d 62 (MI 1991). The court reasoned that, "[t]hough there may be causation in fact here, this chain of events is too attenuated to constitute legal causation for the radical kind of liability that the statute imposes." The court held that there was insufficient causation to impose strict liability under the dog bite statute, but that the victim's family was free to assert a negligence claim against the driver of the car.
Provocation is the owner's defense to liability. Grams v. Howard's O.K. Hardware Co., 446 N.W.2d 687, 689 (Minn. App. 1989), pet. for rev. denied (Minn. Dec. 15, 1989). Whether the dog was provoked is an issue of fact. Bailey v. Morris, 323 N.W.2d 785, 787 (Minn. 1982). In Grams, a 22-month-old child was bitten by a dog having hip displasia, a painful hip condition which is undetectable without seeing the dog walk. The child had petted the dog without incident, but later the same day, the child was bitten when she placed her arms around the dog's neck. The court of appeals held that provocation did not exist as a matter of law upon finding: (1) the owner knew the dog was in pain; (2) the pain was not apparent to observers; (3) the child was only 22 months old and there was no evidence indicating the child appreciated the danger in approaching the dog; and (4) there was no evidence demonstrating the child's act was anything other than inadvertent. The opposite conclusion was reached, and provocation was properly decided by the jury, where the dog was healthy, the child 4 years old, and the child tried to sit on the dog while it was sleeping. Erickson v. Delano, 458 N.W.2d 172 (MI Ct. of App., 1990).
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