DOG CONSTITUTES A "CONDITION ON THE LAND" FOR PURPOSES OF PREMISES LIABILTY

Charlynn Turner

Under a premises liability theory, the duty a landowner owes depends on an individual’s status on the land at the time of alleged injury. In light of that status, a landowner may owe a duty to protect the individual from a dangerous “condition on the land.” A “condition on the land” is a risk that and individual encounters when he or she enters the land of another. The condition may be artificial or natural. There are a number of conditions that are routinely litigated and addressed by courts in Michigan, including but not limited to snow and ice, cracks in a sidewalk or parking lot, etc.

Until recently, however, Michigan appellate courts had not expressly addressed, in binding precedent, the question of whether a dog constitutes a “condition of the land” for purposes of premises liability.

In Tripp v Baker et al, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 360960), Tripp suffered alleged injury following a dog bite while his hand was on the land of another. The dog was owned by Carrie Baker who leased a residence neighboring the home of Tripp’s mother. Tripp was trimming bushes in his mother’s backyard when he placed his hand on top of a chain-link fence for support. He asserted that while he had his hand placed on top of the chain-link fence, Baker’s dog bit his hand through a broken portion of an adjoining wooden fence.

Following the incident, Tripp asserted a premises liability claim against the landowners of Baker’s leased premises, the Pollacks, alleging that they failed to maintain the property in reasonable repair since the dog was able to reach its head through the wooden fence. The Pollacks moved for summary disposition, asserting that Tripp was a trespasser and that any danger posed by the dog was open and obvious such that they owed no duty to Tripp. The trial court agreed, granting summary disposition in favor of the Pollacks on the basis of their open and obvious defense.

The Court of Appeals concluded that “a dog qualifies as a ‘condition on the land’ for purposes of premises liability” because “it poses an artificial risk to a visitor when they enter on to another’s land.” Applying its legal conclusion to the factual record, the Tripp Court held that the Pollacks failed to provide any argument or evidentiary support for their contention that the dangerous nature of the dog was open and obvious. Therefore, the Court held that the trial court erred in granting summary disposition on that specific basis since the Pollacks, as the moving parties, were required to present documentary evidence demonstrating no genuine issue of material fact. Nevertheless, the Tripp Court upheld the trial court’s grant of summary disposition under a separate theory rooted in a trespass to land defense. The Court determined that the Pollacks had provided sufficient evidence in support of their motion for summary disposition to support their defense that Tripp was a trespasser, and thus the burden of proof shifted to Tripp to provide evidence that he was not, and Tripp failed to provide any such evidence. Therefore, the Pollacks only owed Tripp a duty to refrain from causing injuries through willful and wanton misconduct and did not breach that duty.

The Tripp Court held that a dog unequivocally constitutes a “condition on the land.” Given that dogs vary greatly in size, and are living and breathing animals with their own characteristics, personalities, and training backgrounds, this ruling appears to invite further discussion regarding what behavior qualifies as “dangerous” in determining whether a dog constitutes a “dangerous condition on the land” for purposes of premises liability. Whether a dog constitutes a dangerous “condition on the land,” then, seems to remain entirely dependent on the factual record proffered by the plaintiff. Finally, it is noteworthy that the Tripp decision does not effect a dog owner’s potential liability for a dog bite arising under statute, i.e., MCL 287.351.