| We have obtained one lawyer’s memorandum surveying the dog
bite cases in Michigan. According to this memo, we think, Ato should not
be sentenced to death.
I. Michigan’s Dog Bite Statute (MCL 287.351)
If a dog bites a person, without provocation while the person is on
public property, or lawfully on private property, including the property
of the owner of the dog, the owner of the dog shall be liable for any damages
suffered by the person bitten, regardless of the former viciousness of
the dog or the owner’s knowledge of such viciousness.
Basically, the Dog Bite statute is strict liability, and fault is not a
necessary element. The only elements the plaintiff must prove by a preponderance
of the evidence (i.e., more likely than not) is that the defendant is the
"owner" of the dog, and that the dog bit them. The basis of liability is
not negligence in the manner of keeping and confining the dog, but in keeping
him at all. Szkodzinski v. Griffin, 431 N.W. 2d 51 (Mich. App. 1988).
The plaintiff is only entitled to compensatory damage. The one and
only defense to the dog bite statute is that the plaintiff somehow provoked
the dog (a reasonable person standard applies here).
II. Common law Strict Liability
The Dog Bite Statute does not supersede a cause of action under common
law. MCL 287.288. Under common law, an owner or keeper of an animal can
be held liable for harm caused by the animal only if he knew of the
vicious nature of the animal. Nicholes v Lorenz, 237 N.W.2d
468 (Mich. 1976). This is more difficult for the plaintiff to win under,
because often times only the defendant knows whether the dog has acted
"viciously" in the past. [Also, if the plaintiff only sues under the
dog bite statute, the dog’s past behavior is irrelevant and inadmissible
as unduly prejudicial evidence. Nicholes v Lorenz, supra.
396 Mich. At 53.] At common law, owners and certain other persons such
as "keepers", "possessors" or "custodians" are liable for injuries caused
by a domestic animal with violent propensities that are known to that person.
Trager v. Thor, 501 N.W. 2d 251 (Mich. App. 1993). Absolute liability
attaches after proof that the owner has knowledge of the dog’s dangerous
propensities. "[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." Id. citing Brooks v Taylor,
65 Mich. 208, 210-211, (1887).
III. General Negligence
Under a Negligence theory, the basis of liability consists of the failure
to restrain or control an animal properly—even one not known to be vicious.
To make a prima facie case, the plaintiff need only show "that the defendants
failed to exercise ordinary care under the circumstances to control or
restrain the dog." Id. (citations omitted).
IV. City Ordinance
In Szkodzinski v. Griffin, supra, the plaintiff attempted
to bring a private cause of action under the Grosse Pointe Woods Bog Bite
Ordinance, but the charge was dismissed because the ordinance did not create
a private cause of action.
V. Statute of Limitations
The statute of Limitations for this cause of action is three years.
MCL 600.5805 (8).
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