Dec. 29, 2014 – George Kontos was allowing his daughter’s family to live rent free at a home he owned when the daughter’s dogs attacked a visitor. Kontos did not live there. Recently, the state supreme court held that Kontos is not liable for the victim’s injuries.
The plaintiff, Julie Augsburger, argued that Kontos was considered an “owner” of the dogs under Wisconsin’s dog bite statute because an “owner” includes any person who “harbors” a dog. Kontos was harboring his daughter’s dogs on his property, she argued.
An appeals court sided with Augsburger, concluding that Kontos “harbored” the dogs by providing shelter and lodging for the dogs, and he had the power to remove them. The appeals court distinguished Kontos from a landlord who charges rent to tenants.
But in Augsburger v. Homestead Mutual Ins. Co., 2014 WI 133 (Dec. 26, 2014), a 6-1 majority declined to rule that Kontos’ status as property owner triggered liability.
“We conclude that mere ownership of the property on which a dog resides is not sufficient to establish that an individual is an owner of a dog under Wis. Stat. 174.02,” wrote Justice Ann Walsh Bradley for the majority, reversing the appeals court decision.
“Rather, the totality of the circumstances determines whether the legal owner of the property has exercised the requisite control over the property to be considered a harborer and thus an owner under the statute,” Bradley wrote.
The majority reviewed prior case law to determine who is considered a dog “harborer,” concluding that Kontos was not under the totality of the circumstances.
For instance, the majority noted that Kontos bought the house and did not charge rent, but his daughter’s family members were not mere houseguests. They were more like tenants. These facts were distinguishable from another dog bite case in which a property owner let her daughter’s friend keep his dogs at her own house.
“Although Kontos provided shelter for his daughter and family by buying the house for them to live in, he exercised no control over that property and maintained a separate residence,” Bradley wrote. “Ultimately, it was his daughter who provided shelter to the dogs.”
Justice David Prosser filed a lone dissent. He said Kontos was considered a “harborer” under the dog bite statute and noted that Augsburger likely won’t be able to recover her significant medical expenses because the daughter’s family had no liability insurance.
“[T]his result forecloses any realistic possibility that Julie Augsburger will recover damages for her medical expenses, as well as her scars and her pain and suffering,” Prosser wrote. “This outcome contradicts the language, design, and purpose of the statute, and unfairly victimizes Augsburger a second time.”