CAROLYN SUE KELSEY and DAVID B. KELSEY, Plaintiffs-Appellants, v. NITA LINT, Defendant-Appellee.
No. 336852
STATE OF MICHIGAN COURT OF APPEALS
December
FOR PUBLICATION; Montcalm Circuit Court; LC No. 2015-020665-NO
Before: MARKEY, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.
In this dog-bite case, plaintiffs1 Carolyn Kelsey and David Kelsey appeal as of right the order granting summary disposition to defendant Nita Lint and denying plaintiffs’ motion for sanctions under
On August 31, 2013, Kelsey was bitten by Lint’s dog while on Lint’s property. Kelsey had attended a garage sale at Lint’s house on August 30, 2013. She returned to Lint’s property about 5:00 p.m. on August 31, 2013, after the sale had ended, to inquire about an item that had been for sale the previous day. When Kelsey exited her vehicle, Lint’s dog ran at Kelsey frоm the back of the house and bit Kelsey’s leg. Following this incident, plaintiffs filed the current lawsuit alleging: (1) a statutory dog-bite claim under
Lint moved for summary disposition under
Plaintiffs opposed Lint’s motion for summary disposition, arguing that Kelsey was a licensee because, like the general public, Kelsey had an implied license to enter Lint’s property аnd approach the house to knock on the front door. In opposing Lint’s motion for summary disposition, plaintiffs also sought sanctions under
Following a heаring, the trial court granted summary disposition to Lint. The trial court reasoned that Kelsey was an invitee when she attended Lint’s garage sale; but, the court concluded as a matter of law that Kelsey was a trespasser when she returned to Lint’s property after the sale. Based on Kelsey’s status as a trespasser, the trial court dismissed plaintiffs’ statutory and common law dog-bite claims. The trial court also denied plaintiffs’ request for sanctions under
I. KELSEY’S STATUS ON LINT’S PROPERTY
On appeal, plaintiffs first argue that the trial court erred by dismissing their statutory and common law dog-bite claims based on the conclusion that Kelsey was trespassing. Specifically, plaintiffs contend that anyone, including Kelsey, has an implied license to enter property and knock on the front door. According to plaintiffs, in the absence of a fence or “no trespassing” signs, Lint acquiesced in the general public’s customary use of property. While there was a “no soliсiting” sign on Lint’s door, plaintiffs maintain that this does not render Kelsey a trespasser because she was not soliciting and, in any event, the dog attacked Kelsey before she had an opportunity to observe the sign. With regard to the garage sale, plaintiffs argue that the sale did not alter the general implied license that exists to enter property. Plaintiffs contend that, if anything, Lint’s practices showed that she had acquiesced in allowing people to return to her property after a garage sale to take a second look at items. In these circumstances, plaintiffs assert that the trial court erred by concluding as a matter of law that Kelsey was a trespasser.
“This Court reviews a trial court‘s decision on a motion for summary disposition de novo.” Barnes v Farmers Ins Exch, 308 Mich App 1, 5; 862 NW2d 681 (2014). Lint moved for summary disposition under
Plaintiffs brought both a statutory dog-bite claim and a common law, negligence-based dog-bite claim. We begin with plaintiffs’ statutory claim. The dog-bite statute is
If a dog bites a person, without prоvocation 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.
The statute imposes “almost absolute liability” on the dog owner, except when the dog bites after being provoked. Koivisto v Davis, 277 Mich App 492, 496; 745 NW2d 824 (2008). However, to succeed on a claim under
A person is lawfully on the private property of the owner of the dog within the meaning of this act if the person is on the owner‘s 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, or if the person is on the owner‘s property as an invitee or licensee of the person lawfully in possession of the property unless said person has gained lawful entry upon the premises for the purpose of an unlаwful or criminal act. [
MCL 287.351(2) (emphasis added).]
Licensees and invitees—in addition to trespassers—are common-law categories for persons who enter upon the land of another. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). Under
In this case, the parties focus their arguments on whether Kelsey was a licensee or a trespasser when she returned to Lint’s property. “A ‘trespasser’ is a person who enters upon another‘s land, without the landоwner‘s consent.” Stitt, 462 Mich 596. In comparison, “[a] ‘licensee’ is a person who is privileged to enter the land of another by virtue of the possessor‘s consent.” Id. Consent to enter may be either express or implied. Pippin v Atallah, 245 Mich App 136, 142; 626 NW2d 911 (2001). “Permission may be implied where the owner acquiesces in the known, customary use of property by the public.” Alvin, 195 Mich App at 420.
Plaintiffs maintain that Kelsey had an implied license to enter Lint’s property. In considering whether Kelsey had implied consent to enter Lint’s property, we begin with the proposition that in the United States, and in Michigan in particular, based on the established habits in this country, there is an implied license that permits ordinary persons to enter property, approach a home, and knock. See Florida v Jardines, 569 US 1, 8; 133 S Ct 1409; 185 L Ed 2d 495 (2013); Kentucky v King, 563 US 452, 469; 131 S Ct 1849; 179 L Ed 2d 865 (2011); People v Frederick, 500 Mich 228, 234-235; 895 NW2d 541 (2017). More fully, the United States Supreme Court has explained this implied license as follows:
“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKee v Gratz, 260 US 127, 136; 43 SCt 16; 67 L Ed 167 (1922) (Holmes, J.). We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to thе home by solicitors, hawkers and peddlers of all kinds.” Breard v Alexandria, 341 US 622, 626; 71 S Ct 920; 95 L Ed 1233 (1951). This
implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation‘s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, preсisely because that is “no more than any private citizen might do.” [Jardines, 569 US at 8.]
Based on Jardines, the Michigan Supreme Court has similarly recognized “an implied license to approach a house and knock.” Frederick, 500 Mich at 238. The scope of this implied license is “defined by what anyone may do” based on “custom” and the “background social norms that invite a visitor to the front door.” Id. at 238-239 (citation omitted; emphasis in original).2 Quite simply, 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.3
Turning to the more specific facts of this case, reasonable minds could conclude that Lint acquiesced in the known, customary use of residential property by the public that involves approaching houses and knocking on the front door to make contact with the occupants. For instance, Lint’s property did not have a fence that prevented entry. The record also indicates that, when approaching Lint’s house from the street, there were no signs prohibiting entry or stating “no trespassing.” Instead, an individual approaching Lint’s home found an open, ungated driveway devoid of signs prohibiting entry. Cf. People v Taormina, 130 Mich App 73, 80; 343 NW2d 236 (1983); Smith v VonCannon, 283 NC 656, 662; 197 SE2d 524 (1973). From these circumstances, it could be inferred that Kelsey had an implied license, consistent with the accepted habits in Michigan, to enter the property and to approach Lint’s front door.
In contrast to this conclusion, in terms of evidence suggesting that Kelsey should not have been on the property, it appears that there was a small “no soliciting” sign posted on a door leading to a portion of Lint’s garage where she previously operated a beauty parlor. Posting a notice may serve to prevent the creation of an implied license. See Restatement (Second) of Torts § 330, comment e (1965). However, whether signs posted on property revoke the public’s implied license to approach the house and knock depends on the context in which a member of the public encountered the signs and the message that those signs would have conveyed to an objective member of the public under the circumstances. United States v Carloss, 818 F3d 988, 994 (CA 10). See also Restatement (Second) of Torts § 330, comment e (1965) (“[T]he decisive factor is the interpretation which a reasonable man would put upon the possessor‘s act.“). Viewing the evidence in this case in a light most favorable to Kelsey, it could be concluded that the location of the “no soliciting” sign was such that someone would have to drive down Lint’s driveway to her house and approach the door before realizing that soliciting was not allowed. Further, “no soliciting” is not synonymous with “no trespassing” оr “do not enter” and thus reasonable minds could conclude that a small “no soliciting” sign on a door to the garage would not prevent Kelsey from driving up Lint’s driveway and exiting her vehicle. Cf. Pippin, 245 Mich App at 142 (a sign “forbidding people to park their vehicles in a particular place does not necessarily convey the message that they may not walk or ride through that same place“).4
According to Kelsey’s description of events, she was attacked by Lint’s dog within seconds of exiting her vehicle and she did not have a chance to approach Lint’s door on which the sign was posted. In these circumstances, even if Kelsey’s proposed inquiry could be considered “soliciting,” given Kelsey’s assertion that she was bitten as soon as she exited her vehicle, before she approached Lint’s door or had a chance to speak with Lint, reasonable minds could conclude that she was still within the scope of the public’s implied license when she exited her vehicle and was attacked by Lint’s dog.
The only other fact presented by the parties as bearing on Kelsey’s status is the garage sale held by Lint on the weekend of Kelsey’s visit. Lint argues, and the trial court concluded, that, because the sale had ended, Kelsey was a trespasser when she returned. However, this reasoning ignores the public’s implied license to enter the property and approach the door. That is, as noted by the trial court, when inviting the general public to her property for a sale, it could be concluded that Lint welcomed those individuals as invitees and, whеn the sale ended, it could be concluded
Overall, viewing the evidence in a light most favorable to Kelsey, while Kelsey did not have Lint’s express permission to return to thе property, it could be inferred that Kelsey had an implied license to enter the property and to approach Lint’s house. Generally, when considering an entrant’s status on the land, “if there is evidence from which one could infer a particular person‘s status on land, then the question is one for the jury.” Pippin, 245 Mich App at 141. Consequently, because reasonable minds could conclude that Kelsey was a licensee, the trial
court erred by determining that she was a trespasser as a matter of law and by concluding that Kelsеy was not lawfully on the property within the meaning of
With regard to plaintiffs’ common law dog-bite claim, plaintiffs’ common law theory is premised on negligence.
[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of сontrol required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen. [Trager v Thor, 445 Mich 95, 106; 516 NW2d 69 (1994) (citation omitted).]
“To make a prima facie showing of negligence, a plaintiff need only establish that the defendant failed to exercise ordinary
In this case, the trial court determined that Kelsey was a trespasser, suсh that Lint’s duty to Kelsey with regard to the dog only required her to refrain from willful and wanton misconduct. See Stitt, 462 Mich at 596 (“The landowner owes no duty to the trespasser except to refrain from injuring him by ‘wilful and wanton’ misconduct.“). Based on this conclusion, the trial court also reasoned that Kelsey could not show a breach of this duty because keeping a dog on one’s property did not constitute a willful and wanton act. However, as discussed, the trial court erred by concluding as a matter of law that Kelsey was trespassing when she was bitten by Lint’s dog. Thus, the trial court erred by applying the willful and wanton standard of care and by dismissing plaintiffs’ common law claim on this basis. Therefore, we also reverse the trial court’s grant of summary disposition to Lint on plaintiffs’ common law dog-bite claim.
II. SANCTIONS UNDER MCR 2.114(E)
In the trial court, plaintiffs requested sanctions under
This Court reviews for clear error a trial court’s decision whether to impose sanctions under
Under
The signature of an attorney or рarty, whether or not the party is represented by an attorney, constitutes a certification by the signer that
(1) he or she has read the document;
(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and
(3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost оf litigation.
Under this rule, “an attorney is under an affirmative duty to conduct a reasonable inquiry into both the factual and legal basis of a document before it is signed.” Guerrero, 280 Mich App at 677. “The reasonableness of the inquiry is determined by an objective standard and depends on the particular facts and circumstances of the case.” LaRose Mkt, Inc v Sylvan Ctr, Inc, 209 Mich App 201, 210; 530 NW2d 505 (1995). “The filing of a signed document that is not well grounded in fact and law subjects the filer to sanctions pursuant to
If a document is signed in violation of this rule, the court, on the motion of a party or on its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees. The court may not assess punitive damages.
“[I]f a violation of
In this case, in documents signed by Lint’s attorney, including her motion for summary disposition, requests for admissions, and other documents, Lint repeatedly denied knоwing that her dog had bitten anyone beside Kelsey or that the dog was aggressive. However, in February of 2014, Lint gave a recorded statement while speaking with a representative from her insurance agency. In this statement, she admits that her dog previously bit a mailman, that he was “protective” of her, and that he had “shown aggression” toward people.8 This recording was referenced during Lint’s deposition in June of 2016, at which time Lint acknowledged that she had given a recorded statement and Lint’s attorney said that he “would loоk into whether or not there was actually a recorded statement taken or not.” Yet, according to statements by Lint’s counsel in the trial court, he did not obtain the recording until 2 or 3 weeks before the summary disposition hearing, which was held in November of 2016. Apparently without obtaining this recording or listening to its contents, Lint’s counsel moved for summary disposition and signed other documents, asserting that there was no indication that Lint’s dog was dangerous and that Lint had not kept a dog that was known to bite people. There is no indicаtion that defense counsel attempted to correct these representations after obtaining Lint’s recorded statement.
While Lint gave obviously inconsistent statements, the question for purposes of
Reversed in part, vacated in part, and remanded for further proceedings. We do not retain jurisdiction. Having prevailed in full, plaintiffs may tax costs pursuant to
/s/ Jane E. Markey
/s/ Joel P. Hoekstra
/s/ Amy Ronayne Krause