Sarah MALONE, by her Guardian ad Litem, Lisa A. Bangert, Laurie Malone and Todd Malone, Plaintiffs-Appellants,† v. Joseph FONS and Frankenmuth Mutual Insurance Company, Defendants-Respondents, Barbara GARNER, Terrance Garner, and ABC Insurance Company, Defendants.
No. 96-3326
Court of Appeals
Submitted on briefs January 7, 1998. —Decided March 17, 1998.
580 N.W.2d 697
†Petition to review denied.
On behalf of the defendants-respondents, the cause was submitted on the brief of G. George Lawrence and Steven W. Keane of Hinshaw & Culbertson, of Milwaukee.
Before Wedemeyer, P.J., Fine and Curley, JJ.
CURLEY, J. Sarah Malone, by her guardian ad litem, and her parents, Laurie and Todd Malone (collectively, “the Malones“), appeal from summary judgment entered in favor of the respondents which dismissed all their causes of action against Joseph Fons and his insurance company. The causes of action were brought against Fons because a dog owned by his tenant bit Sarah Malone. The Malones contend the trial court erred because: Fons‘s conduct fell within the parameters of a claim for common law negligence; Fons was a “harborer” of his tenant‘s dog, as that term is defined in
I. BACKGROUND.
Sarah Malone was eight years old on March 22, 1994, when she was bitten by a Rottweiler belonging to Barbara Garner. As a result of the bite, she sustained serious injury. Garner rented her single family home from Fons; however, Sarah was not bitten on this property. She was in a driveway adjacent to the Garner residеnce when the dog broke free of the leash being held by one of Barbara Garner‘s children, mauling Sarah. Although disputed by Fons, but considered true by the trial court for summary judgment purposes, the Malones also claimed that the dog had previously broken free of his leash, run across the street and placed his jaws around the arm of another young child. Further, the Malones claimed, again disputed by Fons, but accepted as true by the trial court, that the father of the child involved in this first incident related the occurrence to Fons and complained about the dog. As further proof of Fons‘s negligence, the Malones submitted a rental agreement between Fons and Garner which prohibited pets, which Fons failed to enforce. With respect to their third-party beneficiary claim, the Malones assert that Fons either contracted with Garner to pro
The Malones‘s original complaint named only Garner, the owner of the dog, as a defendant. Later, the complaint was amended twice to include Fons, and his insurer, as defendants. The second amended complaint alleged claims of common law negligence and strict liability under
II. ANALYSIS.
Our review of a trial court‘s grant of summary judgment is de novo. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). We use the same methodology as the trial court. Id. That methodology has been described in many cases, see, e.g., Grams v. Boss, 97 Wis. 2d 332, 338-39, 294 N.W.2d 473, 476–77 (1980), and need not be repeated here. Summary judgment must be granted if the evidentiary material demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
A. Common law negligence claim.
Although not argued by the parties, a minority of the court would hold the complaint sufficient to state a cause of action against the landowner Wilkinson upon the basis of common-law negligence. The majority does not agree.
In examining the complaint we find no allegation that James Wilkinson was either the owner or the keeper of the dog, nor is it alleged that he in any way had any dominion over the dog. There is an allegation that he knew his tenant, Ray Prueher, maintained a vicious dog on the premises but the law does not require him, as the owner of the building, to be an insurer for the acts of his tenant. Under
the allegations of this complaint, we hold that the ownership and control of the premises created no duty on the part of the owner of the premises to the plaintiffs.
Id. at 158, 227 N.W.2d at 910.
The Malones argue that the trial court erred in finding this statement dispositive of the case because, in their view, the language in Gonzales addressing the common law negligence claim was purely dicta as it was unnecessary to the issue presented in the case. Further, if this court concludes the language from Gonzales is a holding, rather than dicta, the Malones argue that more recent cases appear to blur the efficacy of the Gonzales ruling. They cite Pagelsdorf v. Safeco Ins. Co. of America, 91 Wis. 2d 734, 284 N.W.2d 55 (1979), and Pattermann v. Pattermann, 173 Wis. 2d 143, 496 N.W.2d 613 (Ct. App. 1992), in support of this argument.
We conclude that: (1) the relevant statements in Gonzales were not a dicta, but rather, expressed the court‘s holding; (2) according to the plain language of Gonzales, Fons is not liable, on common law negligence grounds, for the bite which Sarah received from Fons‘s tenant‘s dog; and (3) neither Pagelsdorf nor Pattermann have modified Gonzales‘s holding as it relates to the facts of this particular case.
1. Gonzales—dicta or holding?
As the Malones point out, the complaint in the Gonzales case concerned an attractive nuisance claim, not a common law negligence claim. See Gonzales, 68 Wis. 2d at 155-57, 227 N.W.2d at 909. The supreme court, however, in response to the dissent, went on to discuss, sua sponte, whether the facts set forth a cause
“Dicta” is language which is broader than necessary to determine an issue. See State ex rel. Schultz v. Bruendl, 168 Wis. 2d 101, 112, 483 N.W.2d 238, 241 (Ct. App. 1992). However, “[w]hen an appellate court intentionally takes up, discusses and decides a question germane to a controversy, such a decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.” State v. Taylor, 205 Wis. 2d 664, 670, 556 N.W.2d 779, 782 (Ct. App. 1996). Applying that test, we determine that the language in Gonzales pertaining to its ruling on the common-law negligence is not dicta, but rather, a holding. We base this on our reading of Gonzales where, we note, the majority intentionally took up, discussed and decided the question of whether the defendant-landlord could be liable on a common-law negligence theory. That question was germane to the controversy because, had the majority adopted the minority position, reversal would not have been necessary. Thus, the Gonzales ruling on common law negligence is not dicta.
2. Fons is not liable for common-law negligence under Gonzales.
We note that the facts of Gonzales are strikingly similar to the facts in the instant case. As in this case, the landlord in Gonzales was sued after a tenant‘s dog bit a child who lived nearby. Here, as in Gonzales, the landlord was neither the owner nor the keeper of the dog, which belonged to the tenant. In Gonzales the supreme court held that the landlord could not be held
In examining the complaint we find no allegation that James Wilkinson was either the owner or the keeper of the dog, nor is it alleged that he in any way had any dominion over the dog. There is an allegation that he knew his tenant, Ray Prueher, maintained a vicious dog on the premises but the law does not require him, as the owner of the building, to be an insurer for the acts of his tenant. Under the allegations of this complaint, we hold that the ownership and control of the premises created no duty on the part of the owner of the premises to the plaintiffs.
Gonzales, 68 Wis. 2d at 158, 227 N.W.2d at 910. Aside from their contention that this language is dicta, the Malones do not seriously dispute that this language, standing alone and apart from other cases, when applied to the very similar facts in the instant case, absolves Fons of liability for common-law negligence.1 Clearly, Gonzales holds that a landlord, who is not an owner or keeper of a tenant‘s dog, and who does not exercise dominion and control over the dog, is not liable on common-law negligence grounds for the acts of his tenant‘s dog.
The rule promulgated in Gonzales is also consistent with cases concerning non-landlord-related common-law negligence dog-bite clаims, and with a
The jury instruction, while not precedent setting, is, nonetheless, persuasive authority. See State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661, 667 n.10 (1993). Clearly, the instruction only contemplates liability for owners or keepers of animals, defined as those who own, or have possession and control of animals. Non-landlord-related animal injury cases also restrict common-law negligence liability to those who are owners or keepers of the animals. See White v. Leeder, 149 Wis. 2d 948, 955-58, 440 N.W.2d 557, 560-561 (1989) (“The common-law rule first requires the owner or keeper to use ordinary care in controlling the characteristics normal tо the animal‘s class.... The liability of an owner or keeper is predicated upon the failure to exercise ordinary care in the restraint and control of the animal.“) (emphasis added); see also Chambliss v. Gorelik, 52 Wis. 2d 523, 528, 191 N.W.2d
Thus, it would appear that Gonzales simply extends the common law rule to a landlord-tenant situation. A landlord is normally neither an owner nor a keeper of his or her tenants’ dogs, nor does a landlord usually exercise any control over those dogs. Hence, a landlord is not liable under the common law for any injuries caused by a tenant‘s dog. Therefore, we conclude that, according to the plain language of Gonzales, Fons is not liable on common-law negligence grounds for the dog bite inflicted upon Sarah by his tenant‘s dog.
3. Has Gonzales been modified or overruled by later cases?
The Malones also claim that even if the language of Gonzales is not dicta, and would absolve Fons of liability for common-law negligence, subsequent Wisconsin cases have modified Gonzales‘s effect. The Malones do not claim that Gonzales has been expressly overruled or modified; rather, they assert that, since Gonzales, the law of negligence has “evolved” to “create [a] common law duty on the part of a landlord for a vicious dog kept by his tenants.” We disagree.
The Malones bolster their argument with two cases. The first is the Pattermann case. In Pattermann, the Pattermann family gathered at Sallie Pattermann‘s home in preparation for a family reunion. Scott Pattermann and his family arrived from Florida
First, in contrast to Gonzales, Pattermann‘s facts are markedly different from the facts in this case. Although Pattermann involved a dog-bite and a landowner, nowhere in the case is there a discussion about the duties of a landlord. Therefore, we find the suggestion that the Pattermann court intended its holding to
The Malones also cite Pagelsdorf to support their theory. In Pagelsdorf, the plaintiff, a neighbor, was injured when a rotted railing collapsed due to the landlord‘s failure to maintain the premises. Pagelsdorf, 91 Wis. 2d at 735-37, 284 N.W.2d at 56-57. Although not a dog-bite case, Pagelsdorf broke new ground and set a new standard for landlords in the maintenance of their rental property. Prior to Pagelsdorf, a landlord, with certain exceptions, enjoyed a general rule of nonliabil-
We believe, however, that the better public policy lies in the abandonment of the general rule of nonliability and the adoption of a rule that a landlord is under a duty to exercise ordinary care in the maintenance of the premises.
Id. at 741, 284 N.W.2d at 59 (emphasis added). The Malones essentially argue that, by abandoning the general rule of nonliability for landlords, Pagelsdorf overruled Gonzales‘s holding that a landlord may not be liable, on common-law negligence grounds, for injuries caused by his tenants’ dogs. Pagelsdorf does contain two sweeping sentences which, if read out of context, would seem to support the Malones‘s position. In the beginning of the opinion, the court stated: “Abrogating the landlord‘s general cloak of immunity at common law, we hold that a landlord must exercise ordinary care toward his tenant and others on the premises with permission.” Id. at 735, 284 N.W.2d at 56. Similarly, near the end of the opinion, the court stated: “In conclusion, a landlord owes his tenant or anyone on the premises with the tenant‘s consent a duty to exercise ordinаry care.” Id. at 745, 284 N.W.2d at 61. After examining the facts of the case and the context of those statements, however, we conclude that Pagelsdorf‘s rule is limited to situations dealing with property maintenance issues and defects in the premises, and thus, that Pagelsdorf did not overrule Gonzales‘s rule regarding dog bites.
In conclusion, a landlord owes his tenant or anyone on the premises with the tenant‘s consent a duty to exercise ordinary care. If a person lаwfully on the premises is injured as a result of the landlord‘s negligence in maintaining the premises, he is entitled to recover from the landlord under general negligence principles. Issues of notice of the defect, its obviousness, control of the premises, and so forth are all relevant only insofar as they bear on the ultimate question: Did the landlord exercise ordinary care in the maintenance of the premises under all the circumstances?
B. Section 174.02(1), STATS., claim.
The Malones also claim that the trial court errеd by finding that Fons could not be held strictly liable under
Determining whether Fons may be held strictly liable under
Section 174.02, STATS., expressly provides that only “owners” of dogs can be held strictly liable under that statute. Section 174.001(5), STATS., however, defines a dog ownеr, for the purpose of
Chapter 174 does not define the term “harborer” found in
The word “harbor” by its meaning signifies protection. “Harboring a dog” means something more than a meal of mercy to a stray dog or the casual
presence оf a dog on someone‘s premises. Harboring means to afford lodging, to shelter or to give refuge to a dog.
Pattermann, 173 Wis. 2d at 151, 496 N.W.2d at 616. The court also held that the defendant‘s adult son‘s dog‘s “transient invasion” of the defendant‘s home was “insufficient to trigger the statute.” Id. The Malones misinterpret this particular comment, and extrapolate from it that, in this case, Fons harbored his tenant‘s dog because the dog was “afforded the opportunity for lodging, shelter and refuge on more than a transient basis.” The Malones, however, have missed Pattermann‘s point. Pattermann does not make every person who happens to have a dog on his or her premises, whether the premises are leased or not, a “harborer” of the dog merely bеcause the dog has been on the person‘s premises for more than a “transient” period of time. Pattermann merely shows that a person will not be considered a harborer if a dog has made only a “transient invasion” of the premises. Thus, we conclude that the mere fact that Fons‘s tenants’ dog had been on the premises that Fons leased to the Garners for a lengthy period of time does not make Fons a harborer of his tenant‘s dog.
According to Pattermann, in order to be considered a “harborer,” one must “afford lodging... shelter or ... give refuge to a dog.” As support for this proposition, the Pattermann court cited Gilbert v. Christiansen, 259 N.W.2d 896 (Minn. 1977). In Gilbert, the plaintiff, a tenant in an apartment building, sued the apartment managers after a tenant‘s dog bit the plaintiff‘s three-year-old son. Id. at 896. The appеal involved the construction of Minnesota‘s dog-bite statute, which placed liability on dog owners for injuries resulting from unprovoked attacks by their dogs. Id. at 896-97. The
C. Third-party beneficiary claim.
Finally, the Malones contend that Sarah is the third-party beneficiary of either a cоntract, which Fons breached, requiring Fons to provide Barbara Garner with liability insurance, or of a misrepresentation made to Garner concerning liability insurance. First, although Wisconsin recognizes a cause of action by a person claiming to be a third-party beneficiary of a contract, see Schell v. Knickelbein, 77 Wis. 2d 344, 348-50, 252 N.W.2d 921, 924-25 (1977), the Malones have cited absolutely no authority, Wisconsin or otherwise, recognizing a cause of action based on a third-party beneficiary to a misrepresentation theory. Therefore, we conclude that this argument lacks sufficient merit and we decline to address it. See Libertarian Party v. State, 199 Wis. 2d 790, 801, 546 N.W.2d 424, 430 (1996) (an appellate court need not address issues that lack sufficient merit to warrant individual аttention).
Second, Sarah could only be a third-party beneficiary of a contract between Fons and Garner if Fons actually contracted with Garner to provide her with liability insurance. We conclude, however, that, as a matter of law, Fons did not make an offer to Garner to
The Malones claim that Fons entered into a contract with Garner to provide her with liability insurance. They base their claim on the fact that Fons charged Garner $14.29 a month for “insurance.” They rely on a letter that Fons sent to Garner several months after Fons began renting to Garner which memoriаlized their oral agreement. It stated:
The new payment for 1992 is now as of March 92: 800.
$575.71 P & I
$ 14.29 Insurance
$220.00 Taxes
_________
$800.00
In order for a contract to exist there must be an offer, an acceptance and consideration. See Flambeau Prods. Corp. v. Honeywell Info. Sys., Inc., 116 Wis. 2d 95, 112, 341 N.W.2d 655, 664 (1984). Apparently the Malones‘s argument is that: (1) the note is evidence of an offer, or perhaps an offer itself, on Fons‘s part to provide Garner with liability insurance in exchange for $14.29 a month; (2) Garner accepted the offer by paying her rent; and (3) the $14.29 constituted consideration. We conclude, however, that, as a matter of law, the note was neither an offer, nor evidence of an offer to provide Garner with liability insurance.
The Restatement (Second) of Contracts defines an offer as “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and
There is no evidence that Fons “manifested a willingness to enter into a bargain” with Garner, whereby he would provide her with liability insurance. According to Fons, the insurance portion of Garner‘s monthly payments was for fire insurance to protect Fons‘s investment in the rental property. Fons and Garner never discussed liability insurance. Fons never made any oral statements to Garner offering to provide her with liability insurance. In fact, Garner testified she did not know what liability insurance was at the time she rented the property. Further, the letter from Fons to Garner, standing alone, is not definite enough in its terms to constitute an offer. The letter does not mention the term “liability,” nor does it explain the reference to insurance. Therefore, there was no offer to provide Garner with liability insurance, and consequently, there was no contract. And, of course, without a contract, the Malones‘s final third-party beneficiary claim fails.
III. CONCLUSION.
In conclusion, under Gonzales, Fons may not be held liable for common-law negligence for the actions of his tenant‘s dog. Fons was not a “harborer” of his ten
By the Court.—Judgment affirmed.
FINE, J. (dissenting). The majority holds that when a landlord is on notice that his or her tenant is keeping a dangerous dog on the rented premises in violation of the lease, the landlord is not responsible if that dog attacks and injures someone within the foreseeable zone of danger even though the рarents of an earlier victim had warned the landlord before the latest attack that the dog was dangerous and asked the landlord to make his tenants get rid of the dog.1 I respectfully dissent.
Under the facts as alleged in this case, I believe that Joseph Fons, the landlord here, had a duty to enforce the “no pets” clause in the lease after he learned that his tenants were harboring a dangerous dog. “A defendant‘s duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone.” A.E. Investment Corp. v. Link Builders, Inc., 62 Wis. 2d 479, 484, 214 N.W.2d 764, 766 (1974). This is true “even though the
Under Wisconsin law, a tortfeasor is liable to an injured plaintiff “if there is an unbroken chain of causation from the negligent act to the injury sustained and if the negligence is a substantial factor,” unless public-policy considerations intervene. Howard v. Mt. Sinai Hospital, Inc., 63 Wis. 2d 515, 523a-523b, 219 N.W.2d 576, 577 (1974) (per curiam, on reconsideration). There was such an unbroken chain here. The crux of the public-policy analysis is whether the imposition of liability would “shock the conscience of society.” Rolph v. EBI Companies, 159 Wis. 2d 518, 534, 464 N.W.2d 667, 672-673 (1991). Imposition of liability here is well within the ambit of the doctrine announced by A.E. Investment Corp., and, in my view, is not barred by public-policy considerations.
The majority, as did the trial court, reads Gonzales v. Wilkinson, 68 Wis. 2d 154, 227 N.W.2d 907 (1975), as barring the plaintiffs’ action. Accepting for the sake of this discussion the majority‘s cоnclusion that the portion of Gonzales upon which it relies is a “holding” and not dictum, I do not agree that Gonzales is dispositive under the facts of this case that we must accept as true.
As the majority recognizes, Gonzales was an attractive-nuisance case. Id., 68 Wis. 2d at 155-156, 227 N.W.2d at 909. In Gonzales‘s passing reference to the landlord‘s common-law negligence, it noted, without even discussing the broad principle it had so recently set out in A.E. Investment, that the landlord had no “dominion over the dog,” and that any liability under a common-law negligence theory rested merely
Although I agree with the majority that Fons is not liable under
Notes
An owner (keeper) of a(n) (insert name of animal) is deemed to be aware of the natural traits and habits which are usual to a(n) (animal) and must use ordinary care to restrain and control the animal so that it will not in the exercise of its natural traits and habits cause injury or damage to the person or рroperty of another.
In addition, if an owner (keeper) is aware or in the exercise of ordinary care should be aware that the animal possesses any unusual traits or habits that would be likely to result in injury or damage, then the owner (keeper) must use ordinary care to restrain the animal as necessary to prevent the injury or damage.
(A person is said to be a keeper of an animal if, even though not owning the animal, the person has possession and control of it or if the person permits another person who is a member of his or her family or household to maintain the animal on his or her premises.)
Owner‘s liability for damage caused by dog; penalties; court order to kill a dog. (1) LIABILITY FOR INJURY. (a) Without notice. Subject to s. 895.045, the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.
(b) After notice. Subject to s. 895.045, the owner of a dog is liable for 2 times the full amount of damages caused by the dog injuring or causing injury to a person, dоmestic animal or property if the owner was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.