Lawful Presence

If you were bitten on a sidewalk, a street, a park or any other public place, this element is satisfied. If you were bitten on private property, including the dog owner’s own property, the statute protects you if you had a right to be there. You had a right to be there if you were invited, if you were a guest, if you were doing a job that brought you there (a mail carrier, a meter reader, a delivery driver, a contractor, a police officer), or if the person in charge of the property let you in or let people like you come and go. You do not need a written invitation. Walking up a driveway and a front walk to knock on a door is something Michigan law lets anyone do, and a person bitten while doing it is lawfully present.

The permission does not have to come from the owner of the house. A tenant, a family member, or a teenager home alone can let you in. A child who is allowed to play in a neighbor’s yard is lawfully there. And a person who runs onto property to warn of a fire or help in an emergency is lawfully there too.

The statute does not protect a trespasser, and the courts look at exactly where the bite happened. A worker told to stay out of the garage who walks into the garage, or a neighbor who reaches over a fence into the yard where the dog is kept, is treated as a trespasser at that spot. Someone in that position can still bring a common-law claim, which is explained at the end of this chapter.

Subsection (2) was added by 1988 PA 142. It does three things. It confirms that people performing a legal duty are covered. It borrows the common-law entrant categories, invitee and licensee, to define everyone else who is lawfully present, and it ties the permission to “the person lawfully in possession of the property,” not the title holder. And it carves out the person who gets in lawfully but for a criminal purpose. Public property needs no definition: a person on a sidewalk or street is covered without more. Nicholes v. Lorenz, 49 Mich. App. 86, 88 (1973) (statute applies “irrespective of the place where the dog bites a person”), aff’d, 396 Mich. 53 (1976).

The Court of Appeals reads subsection (2) through the common-law categories it names. An invitee is on the land for the possessor’s commercial benefit; a licensee is there with the possessor’s consent, express or implied; a trespasser is there without consent. “[I]nvitees and licensees are ‘lawfully’ on the property, but a trespasser cannot maintain a statutory dog-bite claim.” Kelsey v. Lint, 322 Mich. App. 364, 371 (2017). Three rules decide most cases.

Implied licensees are covered. The statute does not use the words “express” or “implied,” and the court refused to read them in: “it would be a contortion of the plain meaning of this statute to exclude the subclass of implied invitees and licensees from their generic group. Rather, the plain meaning and application of the statute requires plaintiff to prove that she was either an invitee or licensee, expressed or implied.” Cox v. Hayes, 34 Mich. App. 527, 531 (1971); accord Alvin v. Simpson, 195 Mich. App. 418, 420 (1992). “Permission may be implied where the owner acquiesces in the known, customary use of property by the public.” Alvin, 195 Mich. App. at 420; Kelsey, 322 Mich. App. at 371. Silence and tolerance are enough to create a license; “[t]he infancy of the party injured does not change the situation.” Cox, 34 Mich. App. at 532.

Anyone may approach a house by the ordinary route. In Kelsey, a woman who had attended a garage sale returned the next evening, after the sale ended, to ask about an item; as she got out of her car in the open driveway the dog came from behind the house and bit her. The trial court held her a trespasser as a matter of law. The Court of Appeals reversed: “as a general proposition, the established customs in Michigan grant anyone, including Kelsey, an implied license to approach a house and knock on the front door.” 322 Mich. App. at 373. A small “no soliciting” sign on the garage did not revoke it: “‘[n]o soliciting’ is not synonymous with ‘no trespassing’ or ‘do not enter,'” and whether a sign revokes the license “depends on the context in which a member of the public would have encountered the signs and the message that those signs would have conveyed to an objective member of the public.” Id. at 374–375. Nor did the end of the sale: “the end of a garage sale—and the loss of invitee status—did not eliminate the implied license that normally exists.” Id. at 376. The license comes from Michigan’s “established customs,” the same body of law that governs police “knock and talk” entries, and it belongs to everyone. Id. at 373 & n.2. A neighbor who pulls into a driveway and calls out to an occupant she has just seen outside is within the same license, or a jury may so find. Puninske v. Goldsmith (2026) (unpublished) (reversing summary disposition; “the trial court read the implied license to approach a house too narrowly”).

The person “lawfully in possession” grants the license, and that is not only the owner. In Cox the owners’ seventeen-year-old daughter had let a three-year-old neighbor play in the yard; the trial court held only the owners could grant a license, and the Court of Appeals reversed: “One need not be required to own property to be in lawful possession of it. … defendants’ teenage daughter, although not the owner of the property in question, had a lawful possessory interest in that land. Her control, the crux of possession, was enhanced at those times she was home alone.” 34 Mich. App. at 531. A tenant’s guest is lawfully present as against the tenant’s dog, and a household member’s invitation is the household’s invitation.

Emergencies and good deeds create a license. A passer-by who ran onto a property to warn the occupants of what he thought was a fire in their garage, and was bitten before they told him the fire was next door, was a licensee: “Volunteer helpers who enter without first being asked to do so to render assistance are generally considered licensees,” and the owners’ failure to send him away at once was itself implied consent. Durecki v. Alcock (2005) (unpublished).

People doing their jobs are covered twice. A mail carrier, utility worker or police officer on the property “in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States” is covered by the first clause of subsection (2); a contractor, delivery driver or service technician on the property at the possessor’s request is an invitee under the second. The limit is the scope of the invitation, discussed next.

The statute does not reach a person who is on private property without consent. The clearest case is Alvin: a ten-year-old climbed the fence into an enclosed backyard to retrieve a ball, admitted in deposition that he knew he was trespassing, and was bitten climbing out. “Under the circumstances herein, permission cannot be implied.” 195 Mich. App. at 421. A neighbor’s affidavit that her own children had permission to retrieve balls did not help him; permission given to others is not permission given to the plaintiff.

The courts assess lawful presence at the place of the bite, not at the property line. A glass installer whose work order read “GO TO FRONT OFFICE NOT GARAGE (DOGS IN GARAGE)” was an invitee when he arrived but, “when Arnett ventured into the garage without permission or invitation, he exceeded the scope of his invitation and became a trespasser in that particular area.” Arnett v. Benton (1999) (unpublished). A man standing in his niece’s yard who put his hand over the dividing fence into the neighbors’ yard, where their dog had been running the fence line barking at him, was bitten on that hand: “the dog bite occurred when plaintiff, albeit only his hand, was on defendants’ private property,” and the owner’s earlier remark that the dog had never bitten anyone was not consent to reach in while the dog was agitated. Cummings v. Girtman (2017) (unpublished). And in the published premises case Tripp v. Baker, 346 Mich. App. 257, 264–265 (2023), a man trimming bushes who rested his hand on a chain-link fence that a survey placed entirely on the neighboring rental lot was a trespasser as a matter of law when the tenant’s dog bit the hand through a gap in the privacy fence; his unsupported assertion that the fence was an acquiesced boundary did not answer the survey.

A first-time entry by a child onto an unfenced yard is not an implied license either. In Lieding v. Blackledge (2004) (unpublished), a seven-year-old who had never been on the defendants’ property and had never met them wandered into their yard with friends and was bitten by their tethered German shepherd; with no evidence of customary use acquiesced in by the owners, the statutory claim failed on this element before the court reached provocation. The difference from Cox is the history: the child in Cox had played in the yard often, with the household’s knowledge, and no one had told her to stay out.

One older unpublished decision, Tieman v. Grinsteiner (2011), held that a stranger who drove up a farm driveway to ask about buying straw was a trespasser because he could not show how often the public used the driveway. Kelsey considered Tieman and called it “unpersuasive” because it ignored the implied-license authority. 322 Mich. App. at 373 n.3. After Kelsey, a person approaching a residence by its driveway and walk is lawfully present unless the possessor has revoked the license with a fence, a closed gate, or signage that an objective member of the public would read as “keep out.”

The criminal-purpose exception in subsection (2) is narrow. It removes protection from a person who “gained lawful entry upon the premises for the purpose of an unlawful or criminal act,” a burglar admitted as a guest, for example. It does not reach a guest who does something wrong after arriving for a lawful purpose, and it has not been the basis of any reported decision in the library.

Status on the land is a jury question whenever the evidence permits more than one inference. Kelsey, 322 Mich. App. at 377 (reasonable minds could find a licensee; summary disposition for the owner reversed, but the plaintiff was not entitled to judgment either); Puninske (same). It is decided as a matter of law when the plaintiff admits the trespass (Alvin), when the entry violated an express instruction (Arnett), or when the possessor’s evidence of the boundary goes unrebutted (Tripp).

When status is contested at trial, the jury will be told what the words mean. The standard dog-bite instructions do not define “lawfully on,” and the Court of Appeals approved reading the premises-liability definitions of licensee and trespasser (now M Civ JI 19.01) alongside them: “Because plaintiff’s legal status upon entering the property was a contested issue in this case, the trial court did not abuse its discretion in giving the jury the information it needed to make a determination on the issue.” McAuliffe v. Harris (2003) (unpublished).

Losing the statutory claim is not losing the case. The common-law counts do not contain a lawful-presence element, and Kelsey holds that a claim against the dog’s owner for failing to control the dog is judged by the ordinary-negligence standard of Trager v. Thor, 445 Mich. 95 (1994), and Hiner v. Mojica, 271 Mich. App. 604 (2006), not by the duties a landowner owes to categories of entrants; applying the willful-and-wanton trespasser standard to that claim was error. 322 Mich. App. at 377–378. Common-law strict liability likewise turns on possession, knowledge of a dangerous propensity and causation, not on where the plaintiff stood. See Chapter 6 and Chapter 7.

The entrant categories do govern a premises-liability claim against the possessor of the land, where the dog is treated as a condition on the land. There a trespasser is owed only the duty to refrain from willful and wanton misconduct, Tripp, 346 Mich. App. at 264, a licensee is owed a warning of known hidden dangers, and an invitee is owed reasonable care. Blaylock v. MacIntyre (2025) (unpublished). Those claims are the subject of Chapter 9; the point here is that a person bitten where he had no right to be should plead the owner’s negligence in controlling the dog, which does not depend on his status, rather than a premises claim, which does.

Trespass is a defense to the statutory claim only. It is not comparative fault, and it does not reduce a licensee’s or invitee’s recovery. Hill v. Sacka, 256 Mich. App. 443, 451 (2003).