Common-Law Strict Liability

Michigan gives a dog-bite victim two routes. The statute, covered in Chapter 2, does not require proof that the owner knew anything about the dog. The common-law claim does, and in exchange it reaches further. It applies when a dog knocks you down or chases you into a fall rather than biting you. It applies against a person who keeps and controls the dog without owning it. It does not depend on where you were standing. And an unintentional act on your part, which can defeat the statutory claim as “provocation,” is no defense to it.

What you have to prove is that the person who kept the dog knew, or should have known, that it had a dangerous tendency unusual for a dog, and that the harm came from that tendency. You do not need a prior bite. Growling and lunging at people, needing to be held back from visitors, snapping, a history of going after other animals, or the owner’s own admissions that the dog is a problem can all be enough, and the question is usually for the jury. What is not enough is ordinary dog behavior: barking at strangers, running to the door, jumping up in play.

If you prove the claim, the owner is liable regardless of how carefully the dog was kept; a dog that got loose despite a good fence is no defense. The only defenses are that you deliberately provoked the dog or were grossly careless in approaching a dog you knew was dangerous.

The modern statement is the Supreme Court’s in Trager v. Thor, 445 Mich. 95, 99–100 (1994), adopting Restatement (Second) of Torts § 509: “Strict liability attaches for harm done by a domestic animal where three elements are present: (1) one is the possessor of the animal, (2) one has scienter of the animal’s abnormal dangerous propensities, and (3) the harm results from the dangerous propensity that was known or should have been known.” The liability is imposed on the person who “introduced the potential danger into the community”; it “is not imposed because of a failure to restrain the animal.” Id. at 100–101.

The rule is old. “[W]hoever keeps an animal accustomed to attack and injure mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing and taking care of it.” Brooks v. Taylor, 65 Mich. 208, 210–211 (1887). “When it appears that a domestic animal is vicious, and has a propensity to do mischief, of which facts the owner or keeper has notice, either express or implied, the law imposes the duty upon such owner or keeper of keeping such animal secure; from which duty a liability arises in favor of any person who without his fault is injured by it.” Knowles v. Mulder, 74 Mich. 202, 205 (1889). The common-law action was expressly preserved when the Legislature enacted the Dog Law, MCL 287.288, and again when it enacted the bite statute, which “retained the common law remedy but in addition enacted the statute.” Nicholes v. Lorenz, 396 Mich. 53, 59 (1976).

Because the liability rests on keeping the animal with knowledge, how it got out is irrelevant. “We hold the owner or custodian of a domestic animal with knowledge of its vicious propensities is liable regardless of fault for personal injuries caused by the escape of the animal.” Papke v. Tribbey, 68 Mich. App. 130, 136 (1976) (reversing a verdict obtained on an instruction that excused an escape “by means beyond the control of the owner”). Some of the nineteenth-century opinions used the word “negligence” for this claim, but the negligence they meant “was said to consist, not in the manner of keeping and confining the animal, but in keeping him at all.” Fye v. Chapin, 121 Mich. 675, 679 (1899).

No prior bite is required. The idea that every dog gets one free bite “does not correctly define the law.” Slater v. Sorge, 166 Mich. 173, 176 (1911). “Knowledge of viciousness of a dog does not necessarily await a first bite.” Massengile v. Piper, 294 Mich. 653, 660 (1940) (Wiest, J., concurring). The Court of Appeals put the standard this way in the decision Trager and Hiner adopted: “A plaintiff need not prove that the owner or custodian knew that his or her domestic animal had already attacked human beings when unprovoked to make a prima facie case of strict liability. Rather, plaintiff need only present proof that the owner knew or had reason to know that the animal had a dangerous tendency that is unusual and not necessary for the purposes for which such an animal is usually kept. … It is enough for plaintiff to prove that the animal has exhibited a tendency to attack human beings or other animals such that the owner would be apprised of the animal’s dangerous character. Sufficient as well is evidence that the animal has exhibited any form of ill temper in the presence of human beings that would apprise a reasonable owner that the animal would attack if uncontrolled.” Rickrode v. Wistinghausen, 128 Mich. App. 240, 245–246 (1983); Hiner v. Mojica, 271 Mich. App. 604, 610 (2006).

Constructive knowledge counts. The test “is whether the owner or custodian knew or should have known of the vicious propensities of the animal.” Papke, 68 Mich. App. at 136 n.2. An owner “may be chargeable with notice through his own negligence to take note of the vicious habits of his domestic animal,” and “[t]he length of time such vicious habit is shown to have existed has an important bearing upon the question whether notice or knowledge of such habit may be inferred and imputed to the owner.” Knowles, 74 Mich. at 206. The knowledge of an agent who manages the premises and the animal is the principal’s knowledge. Meilke v. Schabble, 159 Mich. 163, 166 (1909).

Once knowledge is shown, the dog’s general good character is immaterial. “If he has manifested a disposition to bite mankind, the law casts the burden upon the owner or keeper to take measures to see to it that the animal is so restrained that he cannot do an injury to another,” and “it is immaterial what the general character of the animal is.” Kennett v. Engle, 105 Mich. 693, 695 (1895); Willet v. Goetz, 125 Mich. 581, 583 (1901). Defense evidence that the dog was gentle with everyone else does not answer evidence of the specific propensity.

The question is for the jury. Whether a dog has shown enough ill temper to put its keeper on notice “is generally a question for the finder of fact.” Hiner, 271 Mich. App. at 610 (citing Massengile). In Massengile the chow had never bitten anyone, but it growled and barked at the housekeeper whenever she arrived, had to be held back from visitors, and the owner had said she lost a maid “on account of the dog”; veterinarians added that the breed is apt to bite. The Supreme Court reinstated the plaintiff’s verdict: “it was a question for the jury to determine whether defendants knew or had reasonable grounds to believe that the dog in question had vicious propensities.” 294 Mich. at 660. Where the record shows a documented prior bite and an animal-control recommendation that the dog be euthanized, the element is established as a matter of law. Fitzpatrick v. Bridgestone Retail Operations, LLC, 444 F. Supp. 3d 786, 796–797 (E.D. Mich. 2020) (summary judgment for the plaintiff on strict liability).

The element is a dangerous tendency “unusual and not necessary for the purposes for which such an animal is usually kept.” Dogs bark, guard, run to the door and jump up in greeting, and the Court of Appeals has held that conduct of that kind, standing alone, does not show the required propensity: “the mere fact that a dog barks, growls, jumps, or approaches strangers in a somewhat threatening way is common canine behavior. Thus, such behavior will ordinarily be insufficient to show that a dog is abnormally dangerous or unusually vicious.” Hiner, 271 Mich. App. at 612. The unpublished decisions apply the same line: barking and running at a stranger (Bartholomew v. Hazy, 1999); bolting through an open door (Myers v. Myers, 2003; Stoll v. Stobby, 2008); jumping on a door (Kirkman v. Ellis, 2014); chewing furniture and escaping the house (James v. Gutherie, 2014); growling at a member of the household (Costanza v. Limon, 2021); a herding dog chasing horses (Witt v. Smith, 1999); one playful collision (Kibbe v. Richie, 2012). Breed alone is not notice of a propensity in the individual dog. Tieman v. Grinsteiner (2011) (unpublished).

The word “ordinarily” in Hiner matters, and so does what is on the other side of the line. A tendency to jump on people “might permit a dangerous propensity finding,” Kirkman, and a large dog jumping directly on a person is a harm the law anticipates. Myers. Ill temper directed at people, a pattern of aggression toward a class of visitors, a prior bite, snapping, or the owner’s own concern about the dog is the Massengile and Rickrode evidence that goes to the jury. In Rickrode itself the trial court had held that a cat’s scratching of three children in the prior weeks was normal feline reaction; the Court of Appeals reversed because that “was essentially a finding of fact” for the jury. 128 Mich. App. at 246. The claim is proved with specifics: who the dog went after, how often, what the owner said and did about it, and what the owner was told.

The injury must come from the tendency the possessor knew about. Notice that a dog chases horses in the field is not notice that it will lunge at a horse inside a barn, Witt, and a jury that finds an owner knew the dog was dangerous may still find that a particular bite was caused by the victim’s act rather than by the propensity. Brans v. Extrom, 266 Mich. App. 216, 222 n.7 (2005). The element is satisfied when the dog did what it was known to do: a dog known to bite people bit a person; a dog known to go after visitors went after a visitor.

Once the three elements are shown, the possessor’s care is not a defense, and neither is the victim’s ordinary carelessness. “If it were proven, as a matter of defense, that the plaintiff willfully provoked the bull, or was grossly negligent in going near him, with knowledge of his vicious habit of hooking, it would, of course, preclude recovery; but I do not think that a want of negligence upon the part of the plaintiff is necessary to be averred or proven. The gist of the action … is the keeping of the dangerous animal with knowledge; and the injury by such an animal is prima facie actionable, without reference to the conduct of plaintiff.” Brooks, 65 Mich. at 211. The Court of Appeals has carried that rule forward: on the strict-liability theory, “negligence on the part of plaintiff … or for that matter any fault, is not at issue,” and “[o]nly the defenses of willful provocation or gross negligence” preclude recovery. Rickrode, 128 Mich. App. at 247–248; Papke, 68 Mich. App. at 135. Comparative fault applies to the negligence theory, not to this one. Rickrode, 128 Mich. App. at 248; Hill v. Hoig, 258 Mich. App. 538 (2003).

That makes the common-law claim stronger than the statute on one point. Under the statute an unintentional act can be “provocation” and defeats the claim entirely (Chapter 3). Under common-law strict liability only willful provocation does. A person who stepped on a known-dangerous dog by accident has a provocation problem under the statute and none under the common law.

The statute is the easier claim whenever it applies, and most bite cases are pleaded and won on it. The common-law strict-liability count is the claim that matters when the statute is unavailable or in doubt:

One cost comes with joining the counts. In a purely statutory action the dog’s history is inadmissible on liability. Nicholes, 396 Mich. at 60–61. When a common-law count is joined, that history comes in on knowledge, for better and worse. Where the history is good for the plaintiff, join the counts; where the dog’s record is clean and the statute plainly applies, the statutory count alone keeps the trial short and the evidence narrow.