Vol. 79, No. 6, June 2006
Wisconsin's Dog Statute
Wis. Stat. section 174.02 covers much more than its popular dog bite moniker implies but much less than its sweeping terms and strict liability label suggest. Attempts to obtain and limit statutory double damage awards are likely to dominate the dog debate because that is where uncertainty and money intersect.
by Peter F. Mullaney
nspector Clouseau approaches a small dog lying near the reception desk in a hotel lobby. "Does your dog bite?" Clouseau asks the innkeeper. "No," the innkeeper responds. "Nice doggy," Clouseau says as he stoops to pet the animal. Snarling angrily, the dog bites Clouseau's black-gloved hand. Clouseau straightens. "I thought you said your dog did not bite," he protests. "That," the innkeeper clarifies, "is not my dog."1
Things are not always as they seem. So it is with Wis. Stat. section 174.02(1), popularly known as the "dog bite" statute. The word "bite," however, does not appear anywhere in the law. More accurately, it is a "dog injury" statute, because it penalizes dog owners whose pets "injure or cause injury" to a person, domestic animal, or property. The current statute provides:
"174.02 Owner's Liability for Damage Caused by Dog; Penalties
"... (1) Liability for Injury. (a) Without notice. Subject to § 895.045 [the comparative negligence statute] and except as provided in § 895.57(4) [granting immunity to dog owner for unauthorized release of confined animal], the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property."
Peter F. Mullaney, Marquette 1985 magna cum laude, is a civil litigation attorney in the Milwaukee office of Peterson, Johnson & Murray S.C., where he handles a wide variety of commercial, business, insurance, and personal injury matters. He previously served as a law clerk in the U.S. Court of Appeals for the Seventh Circuit and in the U.S. District Courts for the Eastern and Western Districts of Wisconsin. The author thanks Skip Spence for his assistance with this article.
No bite is required, and liability attaches whether or not the owner is negligent. Liability may even arise from what might be characterized as a dog's innocent conduct, such as playful jumping or running. Moreover, an injured person can recover double damages if an owner knows or is notified that the offending animal had previously caused injury to a person, domestic animal, or property. The double damage provision states:
"(b) After notice. Subject to § 895.045 and except as provided in § 895.57(4), the owner of a dog is liable for two times the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property if the owner was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property."
Literally interpreted, the statute's open-ended language raises numerous nettlesome issues. For example, are owners automatically liable under section 174.02 if a home visitor trips over a sleeping dog? What if Spot bites a person who enters a home in the owners' absence and without their consent? If a puppy chews a table leg and later bites somebody, is there "previous injury to property" justifying double damages?
The examples are not far-fetched. Wisconsin appellate courts addressed these issues in three decisions released in the last six years.2 Dog owners prevailed in all three cases based on judicial application of public policy factors, even though section 174.02 had previously been construed as a "strict liability" statute.3 Public policy, the courts concluded, "temper[s] the sometimes-harsh results" occasioned by accepting verbatim the statute's plain terms.4 The Wisconsin Legislature, meanwhile, made a policy statement of its own during the 2003-04 session. Lawmakers attempted to narrow section 174.02(1)(b) to allow double damages only if a dog "bit[es] a person with sufficient force to break the skin" and the owner knew or was notified that the dog had previously "bitten a person with sufficient force to break the skin."5 Following a partisan vote (majority Republicans liked the amendment; minority Democrats did not), the Assembly and Senate approved the new legislation but, ultimately, it met with a gubernatorial veto.
Wisconsin therefore remains subject to a broadly drawn dog statute that neither legislators nor judges find entirely adequate, and that both are attempting to curb. The statute's application in certain common scenarios remains in doubt. Most notably, what sort of "previous injury" by a dog justifies a double damage award? This article examines how the law developed and where its boundaries might be fixed in the future.
At common law, dog owners could not be liable for injury or damage caused by their dogs absent proof that 1) the owner was negligent (typically for failing to take reasonable measures to restrain or confine the animal); or 2) the dog committed a vicious or mischievous act and previously displayed vicious propensities and the owner had knowledge of the dog's vicious propensities.6 The common law thus erected daunting obstacles to recovery. For example, if a generally well behaved dog that was tightly held on a leash or securely confined slipped free and caused injury, the victim probably could not prove negligence. The alternative common law theory, based on proof of the dog's prior vicious propensity, could be equally problematic. Evidence of prior viciousness, and that the owner knew about a previous vicious attack, was often elusive.
The claimant's burden eased somewhat more than a century ago. In 1871, the Wisconsin Legislature passed "An act to protect and encourage the raising of sheep and discourage the raising of dogs."7 Parenthetically, it appears to have failed in its stated purpose. There are today approximately 500,000 licensed dogs in Wisconsin (and many more unlicensed), and roughly 85,000 sheep.8 The 1871 statute discouraged dog ownership by making it unnecessary for a person harmed by a dog to prove "scienter" (that the owner knew that the dog had prior vicious propensities). Specifically, the 1871 law imposed liability on the owner or keeper of any dog that "wounded, maimed or killed any cattle, horses, sheep or lambs, or injured any person," without proof that the owner knew that the dog "was mischievous, or disposed to kill or worry sheep." The statute also imposed double damages for injuries to certain animals and treble damages for injuries to people, if the owner had notice of a prior offense.9
The 1871 statute could be construed from at least two angles. The view favoring dog owners posited that the statute did nothing more than render irrelevant the owner's knowledge of the dog's prior undesirable propensity or conduct. This statutory interpretation, sometimes referred to as the "one free bite" rule, still required proof that the dog committed a vicious act and was previously "mischievous" or "disposed to kill or worry" animals.
The claimant's perspective, on the other hand, held that the legislature created a "strict liability" statute. Claimants argued that dog owners were strictly liable if any dog "wounded, maimed or killed any cattle, horses, sheep or lambs, or injured any person," no matter what the dog or owner previously did or knew, and even if the dog's conduct was "innocent."
Strict Liability? No
The Wisconsin Supreme Court decided numerous dog fights during the next century. Many cases involved one or both of two issues: 1) whether the "innocent" acts of a dog (for example, running into the street and causing a car accident) could give rise to statutory liability; and 2) whether statutory liability required proof of previous vicious propensity or "mischievousness."10 Both issues were sub-parts of the broader dispute regarding whether the legislature intended to create strict statutory liability based solely on proof of injury caused by a dog.
The issue came to a head in Chambliss v. Gorelik, a 1971 Wisconsin Supreme Court case decided 100 years after the legislature enacted the original statute. Tipper, a 9-month-old German shepherd/collie mix, allegedly chased the 14-year-old male plaintiff into the street, where a car struck and injured him. There was "no evidence that [Tipper] snapped at [the plaintiff], growled at him, or indulged in anything but, at the most, playful conduct." Consequently, the court held, Tipper's pursuit of the plaintiff was an "innocent" act. The court clarified that there is no liability for the innocent act of a dog unless "there [is] negligence on the part of the owner in permitting [it]," which would be actionable under the common law, not section 174.02.11
The court noted that Tipper had no history of prior vicious or mischievous behavior. Thus, there could be no statutory liability. The court reiterated that "under the statute it continues to be necessary to show that the dog, prior to the act complained about, had vicious and destructive habits. The statute merely eliminates the necessity of proving that the keeper had such knowledge."12
Chambliss did not create new law but clarified, harmonized, and solidified what the court had been saying, with a few exceptions, in various ways for the previous century. For the next 16 years, Chambliss very likely discouraged many claims that might have been brought had "innocent" canine conduct been actionable or if proof of vicious propensity had not been required.13 But the wind soon shifted.
Strict Liability? Yes
The Wisconsin Legislature amended the dog statute in 1981, 10 years after the Chambliss decision. The burning question post-amendment was whether lawmakers intended to repudiate Chambliss and hold dog owners strictly liable for injuries caused by their pets. No transparent signals appear in the statutory language or legislative history on that issue, although the law changed significantly in some respects. The new statute reduced from treble to double damages the penalty for dogs injuring people after an owner is notified of a prior incident; it removed the language explaining that it was not necessary to prove "scienter," that is, that an owner knew that his or her dog "was mischievous or disposed to kill"; and it eliminated the need to prove, in some circumstances, the location of the injury caused by the dog.
Despite the revisions, the essence of the statute remained intact. Prior to amendment, the law declared that "[t]he owner or keeper of any dog which has injured or caused the injury of any person ... shall be liable to the person so injured ... for all damages so done. ..." The amended version stated: "The owner of a dog is liable for the full amount of damages caused by the dog. ..."14 Arguably, both versions suggest strict liability, there being no discernable difference between "shall be liable ... for all damages" (former version) and "is liable for the full amount of damages" (amended). But the supreme court put the strict liability argument conclusively to rest in Chambliss. That precedent, coupled with the rule that statutes in derogation of the common law must be strictly construed,15 seemed to favor the conclusion that the amended law likewise did not create strict liability.16
Not so. In 1987, the court of appeals decided Meunier v. Ogurek, a tragic case involving a dog that ran under the rear axle of a farm tractor operated by Meunier. Startled by the dog, Meunier popped the clutch, which caused the tractor to overturn and kill her. The issue was whether section 174.02, as amended in 1981, imposed liability "only if the dog is mischievous or vicious or has unusual characteristics." The appeals court held that section 174.02 "imposes liability, even if the dog lacks such characteristics" _ in other words, it creates strict liability.17
Because the court of appeals found the amended statute to be unambiguous, it concluded that it had no reason to examine the amended statute's legislative history or cases decided prior to the amendment. The court of appeals made one reference to Chambliss, in a footnote, but made no attempt to distinguish the Chambliss holding or the predecessor statute that Chambliss interpreted.18 In practical effect, the court of appeals in Meunier overruled Chambliss, the Wisconsin Supreme Court, and more than 100 years of dog statute jurisprudence.
The Wisconsin Supreme Court took no offense. In fact, it has unblinkingly embraced Meunier. The court has repeatedly confirmed that section 174.02(1), as amended in 1981 and later, imposes strict liability, at least in the sense that it does not matter if the animal displayed no prior vicious propensity and "innocently" caused injury.19
Strict Liability? Sort Of
The problem with "strict liability" is that it is sometimes too strict. What appeared to be sensible in an unusually tragic case like Meunier is much less compelling _ and sometimes absurd _ in more common litigation. Recognizing the predicament and invoking public policy, the courts adopted a less "strict" analytical approach.
The first crack in the facade surfaced in 1987 in Becker v. State Farm Insurance Co., decided within months of Meunier. In Becker, a dog broke out of its pen and darted into the roadway in front of a vehicle operated by Cheryl Becker. In attempting to avoid the dog, Becker swerved off the highway and sustained injury. The appeals court refused to carve an exception to strict statutory liability for the "innocent acts" of a dog, but it remanded the case for a new trial after acknowledging that "strict liability is tempered by three considerations: public policy, the rules of comparative negligence and the rules of causation."20
More recent cases, all decided since 2000, went further.
Pamela Fullerton invited her mother, JoAnn Alwin, to her home for dinner. During the meal, Fullerton's dog, Tess, fell asleep behind Alwin's chair. There Tess slept, underfoot, as dogs will do, until Alwin quickly stood up, turned to leave, and tripped over the poorly positioned pet, sustaining injuries. Alwin later filed suit because the snoozing pooch "caused injury to a person," allegedly in violation of section 174.02.21
There was no claim that Fullerton acted negligently. In fact, Alwin emphasized that her daughter was not negligent. Instead, Alwin contended that section 174.02 imposes strict liability even for a dog's innocent behavior. The court of appeals agreed with this general proposition but cautioned that "the strict liability imposed by the dog owner statute is tempered by [public policy] considerations." The court ultimately affirmed the suit's dismissal on the ground that "allowing recovery in this case would enter a field that has no sensible or just stopping point."22
A year later, the court of appeals addressed a similarly problematic set of facts in Gasper v. Parbs,23 this time involving the double damages provision. There was no dispute that Nancy Parbs' dog bit the minor plaintiff in the face, which ultimately resulted in a jury award of $25,000. The double damages issue arose during trial when Parbs testified that her dog, when less than six months old and before biting the plaintiff, chewed on and damaged some Tupperware containers and five legs of two wooden chairs. The plaintiff invoked the statutory language allowing double damages if a dog owner has notice that his or her pet previously "injured or caused injury to a person, livestock or property," arguing that Parbs' dog previously caused injury to "property" _ the Tupperware and chair legs. The plaintiff therefore sought an additional $25,000.
The Gasper court construed the double damages provision of section 174.02(1)(b) to be plain and unambiguous. "If construed literally, it imposes double damages on the owner of an injury-causing dog whenever the owner has notice that his or her dog has previously caused any injury to a person, livestock or property." The court concluded, however, that "this literal interpretation would lead to an absurd result if applied to impose double damages in this case."24
"We agree with the trial court that virtually all puppies chew on various items they encounter, including shoes, toys, bones, newspapers, plastic containers and furniture. If the statute will routinely be applied in the manner suggested by [plaintiffs], damages would be doubled in nearly every case in which a dog injures or causes injury. We do not believe the legislature intended this result."25
In 2004, the supreme court in Fandrey v. American Family Insurance Co.26 again confirmed that "strict liability under section 174.02 can be tempered by the judiciary" by a court's application of public policy considerations.27 In Fandrey, a woman and her 3-year-old daughter went to the home of the mother's friend to deliver Christmas cookies. The friend was not home, but the door was unlocked. The mother and daughter entered. While the mother wrote a note to the friend, the daughter wandered into the living room and was bitten by the friend's dog.
The court refused to permit recovery under section 174.02. "[T]o allow liability in this case, where the plaintiff entered the dog owner's home without express or implied permission," the court explained, "would enter a field that has no sensible or just stopping point."28
Double Damages Dilemma
Section 174.02 has evolved into an oxymoron, of sorts. It is a "strict liability" statute that may or may not impose liability, depending on ad hoc judicial application of public policy considerations. Nevertheless, some issues are resolved. Meunier established that dog owners can be statutorily liable without being negligent, even if their dog acted "innocently," unless the dog causes injury 1) while sleeping (see Alwin), or 2) after being surprised by an uninvited guest inside the owners' home (see Fandrey). Other circumstances inviting public policy debate can be hypothesized but, unless the statute is amended, the innocence of the owner or dog will not defeat a statutory claim for actual damages.
Imposing liability on a blameless owner and a playful, innocent dog may strike some as a harsh result. Wisconsin courts apparently perceived it as such for more than 100 years, beginning with enactment of the original 1871 dog statute until the court of appeals decided Meunier in 1987. It has been said, however, that a harsh result in certain extreme situations involving interpretation of a strict liability statute "is the social price sometimes paid for the perceived benefits of the strict liability policy."29 In the dog context, this logic has some appeal in a lawsuit between an innocent victim and a nonnegligent dog owner. When deciding whether the victim or owner should bear responsibility for the innocent (but harmful) act of a friendly, first-offender dog, imposing liability on the blameless dog owner can perhaps be justified on public policy grounds. Accepting responsibility for all of the conduct of one's dog (unless the facts are comparable to those in Alwin or Fandrey) is arguably one of the risks owners must accept in exchange for the right to keep a pet.
Similar logic is significantly less persuasive in many double damages cases. Wisconsin courts have observed more than once that the purpose of the double damages provision in section 174.02(1)(b) is to "punish those who harbor or keep a dog with a known propensity for unprovoked assaults and to deter others from doing the same."30 An owner who knowingly harbors an aggressive pet with a history of attacking or biting people is obviously double-damages-worthy. The question is whether double damages are appropriate based on multiple "injuries" caused by rambunctious puppies or the relatively minor bumps, scratches, or cuts caused by innocent, playful contact with the friendly family pet. The expansive language in the current double damages provision makes no reference to prior propensities, assaults, or bites. Double damages may be awarded based solely on proof of a prior "injury" to persons, property, or domestic animals. Even the friendliest dogs have some history of innocently "injuring or causing injury" to somebody or something, particularly during their energetic, undisciplined early months.
Jumping, teething, chasing, gnawing, scratching, bumping into people and things _ all of these are to be expected and may cause minor "injury" to people or things. Under the current statute, any or all of this behavior may give rise to double damages. Consequently, many dog injury lawsuits are not primarily concerned with compensating claimants for actual damages resulting from undisputed bites or other obvious injuries inflicted on human beings by dogs. Instead, victims focus on a dog's often ambiguous prior behavior in order to double their recovery. If Rover knocks over the owner's child while chasing a ball on the lawn, with minor bruising resulting, and later nips another child's hand when provoked, the owner is subject to double damages. Is that the kind of canine conduct (and owner) the legislature wants to deter and punish?
Probably not, and certainly not if 2003 Assembly Bill 423, mentioned earlier, is considered. Again, the bill would have narrowed section 174.02(1)(b) to allow double damages only if a dog bites a person "with sufficient force to break the skin" and the owner was notified or knew that the dog had previously "bitten a person with sufficient force to break the skin." The goal, it appears, was to eliminate double damages exposure for a dog's arguably "innocent" conduct (because proof of two "bites" _ to people, not to property or other domestic animals _ would be necessary) and for incidental contact (the bites must be sufficient "to break the skin"). The vetoed amendment is not the law, however. The only boundary currently drawn is in the Gasper decision, and it is indistinct at best. In significant dicta, the court stated: "We do not hold that the acts of a puppy will never give a dog owner notice within the meaning of Wis. Stat. § 174.02(1)(b), only that the sort of normal teething behavior involved in this case does not give such notice."31
Injured persons will likely cite the Gasper court's comment to establish that double damages are not precluded simply because a prior injury to person, animal, or property resulted from what might be considered "puppy-like" behavior. The same language might also be put to potent use by dog owners. The court placed the focus not on whether a puppy can cause "injury," which is undeniable, but on whether the behavior of a dog (puppy or not) gives an owner "notice within the meaning of Wis. Stat. §174.02(1)(b)." Perhaps the inquiry is not whether the dog caused prior injury, but whether the dog's prior conduct gave the owner "notice within the meaning of Wis. Stat. s. 174.02(1)(b)"32 _ that is, did the owner know that the dog caused prior injury that section 174.02 is designed to address? In some cases, it may be appropriate to allow the jury to decide whether the circumstances surrounding the prior "injury" warrant double damages.
Things, indeed, are not as they appear to be. Wis. Stat. section 174.02 covers much more than its popular "dog bite" moniker implies, but much less than its sweeping terms and "strict liability" label suggest. Attempts to obtain and limit statutory double damages awards are likely to dominate the dog debate, because that is where uncertainty and money intersect. Given current political reality, in the short term the debate will likely occur in the courts. There, on a case-by-case basis, public policy will be defined.