If the Bark is Just as Bad as the Bite, is Open and Obvious a Possible Defense?

The Michigan Court of Appeals has finally answered the question of whether a dog is a condition on the land under premises liability. Spoiler alert: they paws-itively are!

This confirmation came in the form of a recent published decision by the appellate court in Chester Tripp III v Carrie Baker, et al.

Baker, the dog owner, was leasing property from the Pollacks. The back of the property had a chain link fence, and later a privacy fence was built by the Pollacks on the inside of the chain link fence. These fences separated the property from the property where the plaintiff was visiting.

On the date of the incident, the plaintiff, Chester Tripp III, was working in the backyard when he placed his hand on the chain link fence. Baker’s dog then lunged through a broken panel in the privacy fence and bit the plaintiff’s hand while it was resting on the chain link fence. The plaintiff filed suit against the Pollacks, alleging a premises liability claim for failing to keep their property in reasonable repair and for having knowledge of and allowing a dangerous dog on their property.

In response, the Pollacks filed a motion for summary disposition, raising two defenses: (1) that the plaintiff was trespassing and, therefore, they could not be found negligent for his injuries; and (2) that the dangerous condition on the land, the broken fence, was open and obvious. Notably, the Pollacks argued that the dog was not a condition on the land for the purpose of a premises liability claim, and therefore, they did not argue that the dog was an open and obvious danger. As we now know, that was a mistake.

The appellate court noted that the plaintiff alleged two dangers in his premises liability claim, the fence and the dog. Therefore, the court had to determine whether a dog was a “condition on the land.” The appellate court looked to the Second Restatement of Torts, which states that a condition on the land is a “risk a visitor encounters when they enter onto another’s land,” which may be artificial or natural. Based largely upon this language, the appellate court found that a dog could “certainly be considered a condition on the land for purposes of premise liability because it poses an artificial risk to a visitor when they enter onto another’s land.”

With that in mind, the appellate court then determined that a “prima facie case of premises liability arising from a dog bite requires a showing that: (1) the dog is a condition on the land; and (2) that the defendant had knowledge of the dog’s dangerous tendencies.” 

The appellate court next looked to whether the open and obvious danger doctrine applied, noting that a landowner in a premises liability action owes no duty to a visitor when the danger (the dog in this case) is open and obvious. However, the appellate court’s analysis then stopped. Unfortunately for the Pollacks, they argued that the dog was not a condition of the land and did not argue in the alternative that if the dog was considered a condition on the land, then its danger was open and obvious.

Despite the Pollacks’ omission, the trial court still found that that the dog was an open and obvious danger based upon the plaintiff’s deposition testimony during which he testified that the dog was aggressive and would come through the opening in the fence “to get you.”

However, the appellate court determined that the trial court’s conclusion was incorrect – not because the testimony did not establish that the dog’s aggression made it an open and obvious danger, but because the Pollacks did not argue this in their motion. Therefore, the appellate court ruled that the lower court erred in making this determination because the Pollacks “failed to meet their burden showing that the dangerous conditions on the land were open and obvious.”

This case, therefore, establishes that (1) a dog can be a condition on the land for the purpose of a premises liability claim, and (2) the open and obvious danger doctrine applies as an absolute defense to the claims.  

This ruling should have no real impact on the liability of a dog owner, who remains liable under most circumstances by the dog bite statute as set forth by MCL 287.351.

However, Tripp could have an interesting impact on premises liability law as the appellate court has adopted a very broad definition of what constitutes a “condition on the land.” Under this new interpretation, any known risk by a landowner could be considered a condition on the land – which could include a dog who gets excited and jumps on guests as they enter the home, to the actions of an unruly guest, or even a stray golf ball if you live close to a course.

Despite this broad definition, knowledge of the danger is still required, and the landowner can rely on the open and obvious danger doctrine in defense of the claims.

Notably, while the open and obvious danger doctrine defense currently provides a premises possessor with an absolute defense to a claim, the Michigan Supreme Court is currently deciding whether this absolute defense may soon turn into a comparative negligence defense. Keep following the Litigation Defenders blog for further updates on this issue.

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