Author(s): Jennifer Bruening

Volume XX, No. 2 January 11, 2008

COURT RULES THAT PROVOCATION DEFENSE TO DOG BITES NOT APPLICABLE WHEN DOG ALREADY IN A PROVOKED STATE

The dog bite statute creates almost strict liability against the owner of a dog that bites another person. Currently, there is only one defense to an action brought under the statute: provocation. In the past, our Courts have held that if the plaintiff provoked the dog, even unintentionally, the plaintiff could not recover against the dog’s owner. For instance, in Brans v Extrom, 266 Mich App 216 (2005), the Court of Appeals affirmed a jury verdict in favor of the defendant when the evidence showed that plaintiff accidentally stepped on the dog, which provoked the dog into biting Plaintiff’s leg.

Under Brans, one might conclude that a plaintiff cannot recover for injuries if they initiated contact with a passive dog, ultimately exciting the dog to aggression, because their contact with the dog would be considered provocation. But what about a situation in which the dog is already provoked and the plaintiff is simply responding to the dog’s aggressive behavior? In its recently published decision, Koivisto v Davis, docket no. 272943 (January 8, 2008), the Court of Appeals held that reacting to a dog’s vicious and aggressive behavior does not constitute provocation under the statute, because a dog in that state is already provoked.

1 Ms. Bruening is an associate in the Firm’s Grand Blanc office and can be reached at (810) 695-3700 or at jbruening@garanlucow.com.

Garan Lucow Miller, P.C. 1111 West Long Lake Road, Suite 300 Troy, Michigan 48098 248.641.7600

From the Co-Editors James L. Borin & Simeon R. Orlowski

Jennifer Bruening1 – Contributor

In Koivisto, Plaintiff filed an action against the defendant dog owners and a dog kennel after she was attacked by two dogs which escaped from their kennel. She was sitting on her deck with her two cats when she saw two large dogs approaching. She yelled at the dogs, hoping the noise would frighten them away. The dogs continued their approach, however, jumped towards her deck, and attacked one of her two cats. In an effort to wrestle her cat free from their grip, Plaintiff poked one of the dogs in the eyes, pulled the dog back, grabbed her cat, and ran towards her home. While she was fleeing, the dogs chased her and started to attack her. En route, the dogs saw her other cat still on the porch. When the dogs began to attack plaintiff’s second cat, she kicked the dogs. In the course of defending and freeing her cats from the attacking dogs, Plaintiff sustained multiple injuries, including 28 puncture wounds to her hands, possible permanent nerve damage, and lacerations to her legs.

During the litigation, the defendants admitted that the attack on her cats was not provoked, but argued that plaintiff’s actions, such as poking the dogs the eyes, pulling them, and kicking them, provoked the dogs into attacking plaintiff personally. The defendants also argued that she was not entitled to provoke the dogs to protect her cats. Plaintiff countered that she had the right to defend her cats on her property and therefore any actions she undertook to protect them could not be provocation as a matter of law. The trial Court agreed with the Defendants and granted summary disposition. The Court of Appeals, however, reversed the trial Court in this precedential ruling.

The Court of Appeals framed the issue as whether a victim’s reaction to a dog attack on her own property can be considered provocation pursuant to MCL 287.351. The Court of Appeals agreed with the plaintiff that she, as the victim, did not provoke the dogs in this instance. To the contrary, the dogs unexpectedly entered her property without permission and immediately showed signs of aggression. Plaintiff responded defensively towards the dogs’ aggression, and her defensive response resulted in the dogs attacking her. The Court found that the dogs’ behavior made it clear they were already in a state of provocation before plaintiff even took action against them. Indeed, the dogs were already attacking when Plaintiff took her defensive measures. In this case, it did not matter why the dogs were in such a state (whether something happened at the kennel, or because they saw plaintiff’s cats) because the fact is, they were aggressive even before plaintiff took any action.

Unlike other cases, the plaintiff in this case did not initiate contact with the dogs, seek them out, or invade the dogs’ territory. The dogs here were already aggressive before she made contact with them. Therefore, Plaintiff’s response to the dogs’, even if violent, “does not change the fact that the dogs were already in a provoked state”. She was under no requirement to retreat or submit to the dogs. Furthermore, her reasons for her defensive response also do not matter. As the Court stated, she could have been defending a neighbor’s baby or even a rose bush and under these circumstances, she would still be entitled to recovery. The dispositive issue is whether she provoked the dogs. The Court said no:

“Dogs which are already in a provoked state cannot, by definition, become provoked. Certainly dogs that are already in a state of attack – the most extreme provoked state – cannot become provoked.”

The crucial holding in this case is that the “provocation defense assumes that the offending dog was not already in a provoked state or, as in this case, a state of attack, and that the victim did something that caused the dog to become provoked”. Therefore, reacting and responding to a dog’s “vicious and aggressive behavior” does not constitute provocation under the statute. The Court felt so strongly on this issue that while it recognized issues of provocation are ordinarily for the jury, in this case, the Court of Appeals granted summary disposition to the Plaintiff and remanded the action for a determination of her damages.

What does this mean in actual practice? In assessing dog bite claims, one should examine not only whether the potential plaintiff provoked the dog, but also the dog’s demeanor just prior to the attack. Ask questions relative to whether the plaintiff approached the dog, or vice versa, and carefully examine the circumstances to determine whether the plaintiff was acting or reacting to the dog. If the plaintiff reacted defensively to an aggressive, aroused, or attacking dog, then the provocation defense does not apply and liability will lie under statute.