This column summarizes selected published opinions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
Vol. 83, No. 2, February 2010
Pawlowski v. American Family Mut. Ins. Co., 2009 WI 105 (filed 29 Dec. 2009)
While walking in front of Seefeldt’s house, Pawlowski (the plaintiff) was bitten by one of two dogs that bolted out of the house. The dogs were owned by Waterman, an “acquaintance” of Seefeldt’s daughter, who was staying at the house until he could find employment. He paid no rent. Waterman later moved out and could not be found; he was not a party to this lawsuit. The plaintiff sued Seefeldt, contending that she was the statutory “owner” of the dog under Wis. Stat. section 174.02. The circuit court granted summary judgment in favor of Seefeldt, finding she was not the dog’s “keeper” and thus not a statutory owner. In a published decision, the court of appeals reversed. See 2009 WI App 7, 315 Wis. 2d 799, 762 N.W.2d 802.
The supreme court affirmed the court of appeals in a unanimous opinion authored by Chief Justice Abrahamson. Under section 174.04, the meaning of owner of a dog extends beyond the “legal owner” to include someone who “harbors or keeps” a dog (¶ 19). The opinion distinguished keeping from harboring. Although the terms are similar and the liability that attaches identical, the court held that the two concepts differ. The court held that Seefeldt “harbored” the dog (¶ 31). It rejected Seefeldt’s contention that she had “relinquished” her status as “harborer” at the moment of the attack because the legal owner, Waterman, had assumed control of the dogs when they bolted from the house and attacked the plaintiff. “Here, Ms. Seefeldt took neither ‘affirmative’ nor ‘explicit’ steps to terminate her harboring of the dog before the dog bite incident. Indeed, the dog continued to live in her home for some time after the dog bite incident. When a homeowner has become a statutory owner by virtue of the dog’s living in her residence for several months, that status does not vary on a minute-to-minute basis, depending on which person happens to open the door to let the dog run free” (¶ 50).
The court also held that public-policy considerations did not preclude liability. In particular, it declined to treat as a “tenant” one who is a “houseguest or cohabitant in a single residence” (¶ 75).