Damages, Evidence and Procedure

Under the dog-bite statute the owner is liable for “any damages suffered by the person bitten.” That means the medical bills, past and future, including the scar-revision surgery that a child may not have for years; lost wages; and the noneconomic harm: pain, the fright and shock of the attack itself, disfigurement, embarrassment, and the loss of the ordinary pleasures of life that a facial scar or a lasting fear of dogs takes away. A parent recovers the child’s medical expenses in the parent’s own name. There is no cap on these damages in a dog-bite case and no reduction for the victim’s own carelessness under the statute. There are no punitive damages; Michigan compensates, it does not punish, and the double-damages rule of the 1800s is long gone.

What the jury hears is tightly controlled. In a statutory case the dog’s history, good or bad, is irrelevant: it does not matter that the dog “never bit anyone” or that the breed has a reputation. In a common-law case the dog’s history is the whole case, and it has to be proved the right way. Michigan courts have thrown out one dog claim after another because the plaintiff’s proof of what the dog had done before was something a neighbor said to a relative, repeated in the plaintiff’s own affidavit. The neighbor’s own affidavit, or the owner’s own admission, would have carried the day.

And the case has to be organized correctly from the complaint forward. The three claims carry different rules on fault and on evidence; they are pleaded as separate counts, instructed separately, and answered separately on the verdict form. A verdict form that asks the wrong question, or asks it conditionally, can cost a plaintiff the noneconomic damages entirely, and the Court of Appeals has let such verdicts stand.

“Any damages.” The statute makes the owner “liable for any damages suffered by the person bitten,” MCL 287.351(1), and “[l]iability under the statute extends to ‘any’ damages incurred by the plaintiff, which by definition includes all damages suffered.” Hill v. Sacka, 256 Mich. App. 443, 451 (2003). No reduction is made for the victim’s fault or a third party’s, and the allocation statutes do not apply. Id. at 451–452, 462. See Chapter 11. The recoverable elements are those of any personal-injury case: economic loss (medical and surgical expense, past and future, and lost earnings) and noneconomic loss (physical pain and suffering, mental anguish, fright and shock, denial of social pleasure and enjoyments, embarrassment, humiliation or mortification, and disfigurement), as set out in the model damages instructions, M Civ JI 50.01–50.02. Future noneconomic damages in a scar case are substantial because the scar is permanent; a jury’s award of future noneconomic damages for a two-year-old only for the years after he turned eighteen was questioned as “at least explainable, if not legally sound,” and left standing because the jury had asked whether the parents would control the money. Hill v. Sacka, 256 Mich. App. at 461–462.

No punitive or exemplary damages. The statute “does not provide for punitive damages,” and evidence of the dog’s prior conduct is irrelevant to compensatory damages as well as to liability. Nicholes v. Lorenz, 396 Mich. 53, 62–63 (1976). Michigan’s first dog statute doubled the verdict, and the Supreme Court sustained a doubled $10,000 award in 1899 only on remittitur; that provision died with the 1850 act in 1929. Fye v. Chapin, 121 Mich. 675, 678–682 (1899); see Chapter 1.

A zero noneconomic verdict can stand. In Taylor v. Mobley, 279 Mich. App. 309 (2008), the owners admitted liability under the statute for a pit bull’s bite to a sixteen-year-old’s abdomen and thigh; the jury awarded her past medical expenses and nothing for pain and suffering, and the Court of Appeals affirmed the denial of a new trial. “[T]he jury is free to credit or discredit any testimony. It may evaluate the evidence on pain and suffering differently from the proof of other damages. No legal principle requires the jury to award one item of damages merely because it has awarded another item.” Id. at 314 (quoting Kelly v. Builders Square, Inc., 465 Mich. 29 (2001)). Two things drove the result: the plaintiff waited three days to seek treatment, needed no stitches and consulted a plastic surgeon eighteen months later, and her own verdict form asked the noneconomic question conditionally. Id. at 312–315. Judge Gleicher dissented on the ground that uncontroverted evidence of pain, fright and shock, conceded in the defense opening, made a zero award against the great weight of the evidence. Id. at 316–323. The lesson is in the practice points below.

Minors and parents. The child’s claim for pain, suffering and disfigurement and the parent’s claim for the child’s medical expenses are separate. The parent’s own negligence does not touch the child’s statutory claim, Hill v. Sacka, 256 Mich. App. at 451–452; Fye, 121 Mich. at 679, but it can be weighed against the parent’s individual claim on a negligence theory, which is how a mother’s claim was lost in Veal v. Spencer, 53 Mich. App. 560, 565–566 (1974), after her three-year-old recovered on a directed verdict.

Death and property. A fatal attack is brought under the wrongful-death act, MCL 600.2922, on the same liability theories. Papke v. Tribbey, 68 Mich. App. 130 (1976) (goat; death months later; causation disputed). An attack on another animal is a property claim for the veterinary expense and the animal’s value, and it is litigated as such. Morgan v. Nickowski (2017) (unpublished) (about $8,000 in veterinary bills).

What the reported cases paid. The Michigan decisions in the library report, among others: $50,000 in noneconomic damages for a two-year-old’s facial injuries on the statutory count, Hill v. Sacka; $8,000 in negligence for a hand bite after the jury found provocation, Hill v. Hoig, 258 Mich. App. 538 (2003); $6,500 by directed verdict for a three-year-old’s facial bites in 1974, Veal; a $274,000 verdict against a mobile-home park, vacated for want of a duty, Braun v. York Properties, Inc., 230 Mich. App. 138 (1998); a $160,000 premises verdict vacated for want of knowledge, Mayle v. Fuller (1999) (unpublished); judgments of $435,900 against a park operator and $290,600 against the owner, affirmed, Skiver v. Durga (2022) (unpublished); a $30,000 case-evaluation settlement by a landlord with notice, Wendzel v. Feldstein (2015) (unpublished); and a $1,000,000 default judgment against absentee title-holders after a mauling that cost the plaintiff the use of her hand, McKissack v. Mitchell (2026) (unpublished). The figures say less about value than about the defendant: the cases with real money in them were the ones with an insured owner or a solvent non-owner, which is why Chapter 13 matters.

The dog’s history: irrelevant under the statute, essential at common law. In a statutory case “the only facts necessary to sustain plaintiff’s case are (1) that the dog bit the girl … and (2) the biting was ‘without provocation.’ Nothing else had to be proved and nothing else was relevant—not his prior gentleness or roughness nor the sensitivities of his breed.” Nicholes, 396 Mich. at 60. Fifty-five transcript pages of neighbors describing the dog’s past conduct were prejudicial error requiring a new trial. Id. at 64–65. The rule cuts both ways: the owner may not prove the dog’s gentle history to the jury either. In a common-law strict-liability case the dog’s history is the scienter element, and the plaintiff proves it with prior incidents, the owner’s own warnings and complaints, animal-control records, and the dog’s manifested disposition. Massengile v. Piper, 294 Mich. 653 (1940); Kennett v. Engle, 105 Mich. 693, 695 (1895); see Chapter 6. In a negligence case the history is part of the “total situation,” and the defense is entitled to put a benign history before the jury. Mitchell v. Cunningham (2006) (unpublished); Knapp v. Card (2004) (unpublished) (neighbors’ testimony that the dogs had never jumped the fence admissible under MRE 401).

Breed. Breed is irrelevant to statutory liability. Nicholes, 396 Mich. at 60. On damages, a trial court’s exclusion of the word “pit bull” under MRE 403, while admitting the dog’s size and the details of the attack, was “a close question” and within the range of principled outcomes; the Court of Appeals added that “there is a difference between being attacked by a pit bull and a chihuahua” and that it might have ruled differently. Taylor, 279 Mich. App. at 315–316. Admission is therefore equally within a trial court’s discretion, and the plaintiff’s argument is the one the Taylor dissent made: the breed substantiates fright and shock. Id. at 322–323 (Gleicher, J., dissenting). On common-law scienter, breed temperament is part of the mix. Massengile.

Prior incidents must be in admissible form. On a motion under MCR 2.116(C)(10) the court considers only evidence whose content would be admissible at trial, MCR 2.116(G)(6), and the single most common reason a dog claim is lost at summary disposition is that the proof of a prior incident was hearsay in the plaintiff’s own affidavit. Hightower v. Nuyen (2018) (unpublished) (plaintiff’s testimony that a named woman told him she saw the dog jump on someone; no affidavit from her and no showing it could be made admissible); James v. Gutherie (2014) (unpublished) (double hearsay about a property manager’s knowledge); Kirkman v. Ellis (2014) (unpublished); Morgan v. Nickowski (2017) (unpublished); Blaylock v. MacIntyre (2025) (unpublished). The cure is simple: an affidavit or deposition from the person who saw the incident or made the complaint. The owner’s own statement is a party admission under MRE 801(d)(2) and is admissible through anyone who heard it; a trial court’s refusal to consider the owner’s remark that the dog had knocked him down “twice in our driveway” was reversed on that ground. Radcliffe v. Herdman (2023) (unpublished). Animal-control and police reports that describe the dog as “aggressive” at the time of the attack do not prove a prior vicious nature, Burling v. Skief (2020) (unpublished), but a report of a prior call about the same dog does, and the responding officer is a witness. Skiver; Burnett v. Clarke (2013) (unpublished).

Proving the bite. Whether the injury was a bite is for the jury when contested, and a treating diagnosis of “dog bite” that rests on the patient’s history is not conclusive. Knapp; Cull v. Nielsen (2000) (unpublished) (owner’s deposition admission that the dog bit the child neutralized at trial by her testimony that she had not seen it; clinic record repeated the mother’s account). Photographs of the wound taken promptly, the treating provider’s description of puncture pattern and depth, and an eyewitness are the proof.

What happened afterward. One panel sustained the exclusion, under MRE 407, of evidence that the dog bit its own owner immediately after the disputed contact with the plaintiff. Danison v. Velazquez (1996) (unpublished). MRE 407 governs subsequent remedial measures, not a dog’s conduct seconds later, and the ruling should be contested when the issue arises; the better ground for admission is that the dog’s immediately subsequent behavior is part of the same event.

Deemed admissions. Requests for admission that go unanswered are admitted, and have both won and nearly lost dog cases: unanswered requests established that the dog had bitten other children to the owners’ knowledge in Veal, 53 Mich. App. at 562–563, and a landlord nearly obtained summary disposition on a pro se plaintiff’s deemed admissions in Evers v. Medallion Management, Inc. (2024) (unpublished), where the Court of Appeals held that an oral motion at the hearing sufficed to seek leave to answer late and remanded for the Janczyk analysis.

Pleading. The statutory count, the common-law strict-liability count and the negligence count are pleaded separately and may be pleaded in the alternative. Nicholes, 396 Mich. at 59 & n.2; Veal, 53 Mich. App. at 566. The leash law, MCL 287.262, need not be pleaded by number, because courts take judicial notice of statutes and an amendment to add it is “procedural ‘housekeeping,'” but a local ordinance must be pleaded and proved. Cassibo v. Bodwin, 149 Mich. App. 474, 477 (1986). Denying leave to add the leash-law count after summary disposition on the negligence count was plain error. Radcliffe. Each defendant’s role is pleaded specifically; a complaint that lumped a unit owner, a landlord and an association together as “defendants” who “knew” of the dog’s viciousness was dismissed. Shaw v. Wilson (2002) (unpublished). Against a governmental defendant, plead in avoidance of immunity from the outset (Chapter 10).

Affirmative defenses. Provocation and unlawful presence are the owner’s to raise. Defenses that attack the prima facie case, such as “scratch, not bite” or fabrication, are not affirmative defenses and need not be pleaded under MCR 2.111(F); a JNOV granted on the theory that they were waived was reversed. Knapp.

Summary disposition. Duty is a question of law, and the defense decisions in the common-law cases were nearly all entered under MCR 2.116(C)(10) on the knowledge or foreseeability element. The plaintiff opposing such a motion must produce admissible evidence (above) and, if discovery is incomplete, an affidavit under MCR 2.116(H) identifying the witnesses and the testimony expected; an affidavit restating the complaint does not make the motion premature. Richardson v. Oakland County Animal Shelter (2020) (unpublished). “This Court is liberal in finding genuine issues of material fact,” and the owner’s admission plus the dog’s known character was enough in Radcliffe. On a trespass defense, answer a survey with a survey; an unsupported assertion of an acquiesced boundary lost Tripp v. Baker, 346 Mich. App. 257, 264–265 (2023).

Default. A defendant who is served and does not answer is defaulted, and lay ignorance of the process is not good cause to set the default aside; a $1,000,000 default judgment against non-occupant title-holders of the house where the dogs were kept was affirmed on that ground. McKissack. The case decides nothing about such owners’ liability on the merits.

Jury instructions. The model dog-bite instructions (M Civ JI chapter 80) are given on the statutory count. When lawful presence is disputed, the court may add the premises-status definitions of licensee and trespasser from M Civ JI 19.01, because the statute’s “lawfully on” refers to those categories and the standard instructions do not define it. McAuliffe v. Harris (2003) (unpublished). Instructions on the statutory count may not mention reasonable care, the owner’s precautions or the plaintiff’s negligence. Hill v. Sacka, 256 Mich. App. at 459. The common-law counts take separate instructions on fault. Veal, 53 Mich. App. at 566; Rickrode v. Wistinghausen, 128 Mich. App. 240, 247–248 (1983).

The verdict form. Ask each claim’s questions separately, with the fault allocation attached only to the negligence count. Do not make the noneconomic-damages question conditional (“If you find …”); the plaintiff’s own form in Taylor did, and the zero award survived. 279 Mich. App. at 312–315. When the jury sends a note about who will control a child’s money, answer it with an instruction, not silence; the unanswered note in Hill v. Sacka explained an award that began at age eighteen. 256 Mich. App. at 461–462.

Post-trial and appeal. JNOV is reviewed de novo with the evidence viewed in the nonmovant’s favor; a verdict that reflects a rational view of the testimony stands, Knapp; Cull, and a jury “is free to credit or discredit any testimony” on damages. Taylor, 279 Mich. App. at 314. A great-weight motion under MCR 2.611(A)(1)(e) is the vehicle for an inadequate award. Costs may be made joint and several against multiple defendants in the court’s discretion, MCR 2.625. Skiver. Case-evaluation sanctions and timing are governed by MCR 2.403 and have been litigated in dog cases on both sides. Braun, 230 Mich. App. at 149–150; Tripp; Cull. A claim of appeal runs from the order that disposes of the claim as to that defendant, and a mislabeled order does not defeat jurisdiction. Lynum v. Detroit Police Department (2023) (unpublished).