*1 Tanya and minor, Smaxwell Tatum Smaxwell, Greg Plaintiffs-Appellants-Petitioners, Smaxwell, County Employers Melva Manitowoc Bayard, Company, Defendants, Insurance Health Heritage Mutual Insurance Gloria Defendants-Respondents. Company, Court
Supreme April argument Oral 2004. Decided No. 03-0098.
July
Abrahamson, C.J., joins. *4 plaintiffs-appellants-petitioners For the there were by Alpert LLP, briefs Jordan P. Blad and & Fellows argument by Manitowoc, and oral Jordan P Blad. by defendants-respondents a brief there was
For the Spindler, Mc- Jeremy Nash, & Grimstad and T Gill Jeffrey and T. DeMeuse LLP, Manitowoc; and Cracken Bay, Whitney, SC, Green Everson, & Brehm. Everson by Jeremy argument Pless. and Erik J. T. Gill and oral mi- Smaxwell, a Tatum WILCOX, E J. 1. JON (collec- Greg Tanya parents, Smaxwell nor, and her Smaxwells"), unpublished appeal tively an "the Bayard, appeals No. decision, Smaxwell court 2003). (July slip op. unpublished The court 03-0098, County appeals the Manitowoc an order of affirmed Judge, granted Willis, L. which Court, Patrick Circuit summary judgment defendants, Gloria favor Heritage Thompson (Thompson) Mu- insurer, and her Mutual),1 (Heritage Company and dis- tual Insurance negligence action. missed the Smaxwells'
I. ISSUE presented landowner, is whether 2. The issue common-law landlord, liable on who is also negligence grounds, capacity as a land- in her either by injuries sustained landlord, for or as a owner by lawfully person known caused on her exclusively dangerous dogs her and controlled owned policy public factors, that hold, based on tenant. We and landlords for of landowners common-law by dogs associated with or landlord is the landowner where limited situations causing injury. also the owner egregious, are the case before us the facts of While allowing liability defendant in this instance —where on this arguments the defendants' referring to When collectively Heritage Mutual appeal, we refer "Thompson." as *5 neither the owner nor the
landowner/landlord dogs causing injury enter a field that has —would just stopping point. no sensible or
II. FACTUAL BACKGROUND parties dispute ¶ 3. The do not the material facts Thompson, in this case. at all times relevant to this adjacent parcels action, owned two of land in Manito- County. larger parcels woc The of the two contained Thompson's residence and a former motel that she had apartments. converted into apartment June of three of the occupied. Thompson units were rented one Bayard Thompson unit to Melva and Richard Hines. daughters, Tanya rented the other two units to her Tanya Smaxwell Nicole Klein. Smaxwell lived with Jayme. her Darion, Tatum, three children: Nicole Klein also resided with her children: Nick and Roch- elle. parcel, roughly quarter
¶ 4. second, The smaller prop- woods, acre of erty was located behind the first. This separate parcel property was a located behind the Thompson's on which residence and the converted Thompson Bayard motel were located. allowed to house dogs, including hybrids,2 some of her wolf on the second parcel early Bayard since the 1990s. allowed animals. See hybrids extremely are Wolf controversial generally, Wolf-Dog Hybrid: An Over Willems, Robert A. Animal,
view a Controversial 5 Animal Welfare Information (National Agricultural Library, Beltsville, Center Newsletter MD), available at 1994/1995, http://www.nal.usda.gov/ Winter hybrid "A offspring wolf is the awic/newsletters/v5n4wille.htm. (Canis (Canis breeding of a lupus) between a wolf and a familiaris)." Id. Such animals are classified under the Federal Act, seq. (2000), § Animal Welfare 7 U.S.C. et as domestic (2004) animals. See 9 C.F.R. 1.1 § (defining "dogs" "any as live or keep condition on the back her *6 cross"). familiaris) (Canis The any dog-hybrid or dead as follows: regulations hybrid define cross resulting from the cross- an animal Hybrid cross means types animals. species different or of breeding between two tigers, species, such as lions and wild animal Crosses between animal Crosses between wild to be wild animals. are considered animals, dogs and .. . are such as wolves species and domestic to be domestic animals. considered (2004). § 1.1
9 C.F.R. it technology, limitations of genetics and the Due to accurately the amount of "wolf' extremely difficult to determine Willems, hybrid. Robert A. "dog" present in a wolf or Animal, 5 a Controversial Wolf-DogHybrid: An Overview of (National Agri- Center Newsletter Animal Welfare Information 1994/1995, Beltsville, MD), available at Library, Winter cultural A http://www.nal.usda.gov/awic/newsletters/v5n4wille.htm. (either dog) does not hybrid's as a wolf or appearance wolf behavior, vary necessarily which can correlate to its makeup. upon specific genetic depending to animal its animal are not Thus, patterns of the breed as a whole Id. the behavioral Id. predictable. aggressive, although
Generally speaking, wolves are less general fear of dogs, and wolves have a predatory, more than hybrids, the dogs possess. Id. "In some humans that do not aggressiveness of the timidity may replaced be of wolf ancestry from the wolf dog, predatory contribution while less hybrids can be more or may remain intact." Id. Wolf varying degrees of aggressive dogs may possess than instinct, percentage of "wolf' the predatory depending upon type dog with which the wolf was inherited and the animal Therefore, humans can be "hybrid Id. attacks on crossed. dog and the aggressive tendencies of the related to both the hybrid are on Id. Most attacks predatory nature of the wolf." may prey, due to children, hybrid regard as whom the small "Hybrids child. Id. unwitting part on the some behavior particu- having strong natural dominance tendencies dogs. Thomp- Bayard of and secure the take care keep charge Bayard any rent to additional son did not Bayard dogs area. in the business her in the wooded selling dogs. breeding her Thompson of the number of was not aware dogs Bayard kept property and she took no active Thomp- caring housing dogs. However, role permit Bayard of kennels did to construct number son dogs. parcel to house on this second Thompson on the construction of the kennels examined inspected the condi- occasion, one hut had not at least since the were housed tions under which no control over the mid-1990s. exercised dogs were wolf that some of the animals but was aware *7 hybrids. County
¶ 1992, the Manitowoc Sheriffs 6. Since complaints Department received over dogs. neighbors regarding Thompson's the the Most of vicious-looking expressed complainants the fear over being dogs hybrids over the allowed and concern wolf by deputy large. was bitten In 1992 a sheriffs run at Bayard. Shepard caller In 1995 a German owned dogs pigeons complained in the had killed his that the dogs Bayard past. killed had admitted that the In 1999 complaints puppies. of the other of her None some per- actually attacking Bayard's dogs another involved Thompson had aware that there or animal. son complaints to law enforcement made a number been dogs regarding personnel aware that and she was the dogs police Also, officer. the bit a one of ten- "Many [hybrids] retain the natural larly dangerous...." poor house that makes the wolf such dency destruction toward the home Thus, unsuitable in "[hjybrids are often pet." Id. Id.
environment." regarding dogs received a citation sometime in disposition mid-1990s. The nature and of this citation part are not of the record. Tanya 15, 1999, 7. On June and Smaxwell along visiting Klein, children,
Nicole Thompson. with their were preparing The adults were to drink coffee porch Thompson's on residence. While the adults three-year-old preparing coffee, were Tatum was play five-year-old allowed to outside with her cousin preparing coffee, Nick. Before the adults finished screaming dogs Nick ran into the house that the had Bayard's hybrid dogs, attacked Tatum. Three of wolf weighing pounds, attacking each over were Tatum. Although Thompson Tanya were able to free attacking dogs, Tatum from the Tatum sustained seri- injuries. larger ous The attacks occurred parcels by Thompson parcel upon two owned —the her which residence and the converted motel were undisputed located. It is were loose Bayard neglected pre- because to latch kennel the night. vious
III. PROCEDURAL POSTURE July 2, 2001, 8. On the Smaxwells filed suit against Bayard, Thompson, Heritage Mutual, County negligence.3 Manitowoc for common-law joined Employers Smaxwells also Health Insurance *8 3All of the Smaxwells' against Thompson claims involve allegations of direct on of part Thompson. That is, allege while some of the Smaxwells' claims that Thompson supervise Bayard, failed control or all of the Smaxwells' alleged claims arise out of the Thomp action inaction of and/or son. The do not any Smaxwells assert that there is for basis liability part Thompson vicarious on of for the conduct of Bayard.
Company, Humana, the insurer who made medi- k/n/a payments of Tatum. Humana filed a cal on behalf later against Heritage subrogation Ba- Mutual. counterclaim appear any yard did not an answer and did not file proceedings. Following Thompson discovery, for moved ground summary judgment on the that as matter injuries responsible either law she was not for Tatum's County or landlord. Manitowoc moved as landowner summary discretionary judgment ground on for immunity. judg-
Heritage summary Mutual moved for Thompson personal ground had no ment liability provide policy did, and if did she its not coverage. Heritage moved Mutual and the Smaxwells summary judgment against ground Humana on the for subrogation barred that Humana's counterclaim was federal law. under 25, 2002, the circuit court ren- 10. On October for
dered a decision and order on the various motions summary judgment. The circuit court concluded that negligent, "Thompson's if cannot form conduct, even liability law for under the current state of the the basis that the does The circuit court noted law Wisconsin." negligent impose on landlords landown- on their ers for nonowned granted Thomp- property. Therefore, court the circuit summary judg- Heritage Mutual's for and motions son against dismissed the Smax- ment the Smaxwells and Heritage against Mutual. claims wells' County's granted Manitowoc The circuit court also summary judgment dismissed motion against County. In addi- claim Manitowoc Smaxwells' Heritage granted mo- Mutual's tion, the circuit court summary judgment against dis- Humana and tion for Heritage against Mutual. cross-claim missed Humana's *9 summary The court denied motion for Smaxwells' judgment against Humana and dismissed Humana's against Thompson, County, cross-claim Manitowoc and Heritage Mutual. portion appealed
¶ 11. The Smaxwells of the granting summary judgment circuit court order dismissing negligence against Thompson their action Heritage appeals The Mutual. court held that only keeper under law Wisconsin an of an owner negligence. held animal liable for common-law unpublished slip op., Smaxwell, 03-0098, No. appeals
court reasoned that because a landlord normally dog does not exercise over a control tenant's normally dogs, and is not the owner or landlord is not liable under common-law any injuries dog. addition, Id. the court appeals stated that a landlord is under a to only respect exercise care with defects premises and maintenance of the and that this does rule not extend Id., bite claims.
IV STANDARD OF REVIEW grant ¶ 12. We review a circuit court's of sum mary judgment independently, applying the same meth odology as the circuit court. Town
of Delafield Winkleman, ¶ 17, 2004 WI Wis. 2d Summary judgment N.W.2d 470. "shall if be rendered pleadings, depositions, interrogatories, answers together file, and any, affidavits, admissions on if with genuine any show that there is no issue as to moving party material fact and that the to a entitled 802.08(2) judgment § as a matter of law." Stat. Wis. (2001-02).4 summary judgment materials viewWe nonmoving party. light to the *10 most favorable in the Torgerson Journal/Sentinel, Inc., 524, 2d 210 Wis. v. (1997). Summary judgment should 472
537, 563 N.W.2d conclusively presented granted, "unless the facts not be plaintiffs merit and cannot action has no the show that City Milwaukee, 2d 10 Wis. v. maintained." Goelz be of (1960). the material Where 495, 103 491, N.W.2d solely presented disputed, with the court is are not facts subject question Town to de novo review. law, a ¶ 16. 2d 269 Wis. Delafield, ANALYSIS
V upon to determine case, we are called In this capacity Thompson may in her liable, either whether by injuries for sustained landowner, a landlord or as by lawfully known person her on by exclusively dangerous dogs her and owned controlled intersection Thus, this case involves tenant. liability landowner law: areas of
three premises property, occurring landlord dangerous liability, of known for the acts and dogs. provide context for the reader with In order to briefly arguments, respective parties' summarize we they rely. upon principal which cases Wilkinson, 2d 68 Wis. Gonzales (1975), plaintiff, a one and 155, 227 N.W.2d adja half-year-old onto an from home child, wandered duplex on yard and was bitten located was cent where by duplex hound owned a basset the head plaintiff the landlord sued both tenant. owner's theory. Id. at under an attractive-nuisance tenant the 2001-02 are to Statutes All citations to the Wisconsin noted. unless otherwise version respect complaint
155-56. With to the landlord, alleged, negligent "failing alia, inter that he was adequately yard dog enclose the in which said vicious "failing provide located[,]" someone to watch over dog dog yard the said vicious when the inwas where "allowing occurred[,]" incident his tenant... occupancy rights respect duplex maintain with to the grounds knowing and its while that he maintained a vicious animal." Id. at 156. majority
¶ 15. The in Gonzales concluded that the plaintiff could not maintain an action for attractive nuisance because a does not constitute an artificial dangerous condition that is to children. Id. at 157. The majority "[although reasoned: such a condition need *11 permanently upon not be erected the land, it must be 'artificially majority disagreed construed.'" Id. The also complaint, liberally with the dissent's assertion that the alleged negligence: construed, a cause of action in examining In complaint allegation we find no that [the landlord] was either the owner or the dog, alleged of the is it any nor that he in way any had dog. dominion over the allegation There is an that he knew his tenant. .. maintained a vicious on the premises him, but the require law does not as the building, owner of the to be an insurer for the acts of his allegations tenant. Under the complaint, of this we hold that the ownership and control premises of the duty created part no of the owner of the premises plaintiffs. to the
Id. at 158. Reszczyn term, The next in Antoniewicz v. (1975),
ski, 836, 839, 70 Wis. 2d 236 N.W.2d1 this court abolished the common-law distinction between a duty In An- and invitees.5 to licensees landowner's plaintiff home of the defen- toniewicz, went to the daughter giving purpose the defendant's for the dant at the friend's home. Id. at While a ride to a slipped patch plaintiff on a residence, defendant's porch the defendant that was known to ice on the back argued plaintiff. The defendant to the Id. but unknown duty plaintiff of hidden that he owed no warn merely plaintiff dangers a social invi- because properly that the circuit court tee. This court concluded ordinary upon imposed land- care the standard of overruling Id. at 857-58. his demurrer. owner doing between the so, abolished the distinction we invitees and held: to licensees and a landowner owes upon property persons all who come toward ordinary be that of occupier the consent of the will with care, we mean the By such standard of care. negligence cases in used in all other
standard test, repeatedly as we have .. Under Wisconsin.. by ascertaining
stated, to be determined negligence is foreseeably of care defendant's exercise whether That is to to others. test created an unreasonable risk analysis to the negligence phase at the applied particular plaintiff. to the large at and not world Id. at 857. years continued the later, court 17. Four this abrogating immunities abol common-law
trend of
immunity enjoyed by
ishing
Pagelsdorf
general
*12
landlords.
of
the
cloak
Am.,
2d
Co.
91 Wis.
Ins.
Safeco
of
v.
(1979).
Pagelsdorf
the
735,
¶ 18. At the time, the common-law rule was that a landlord not was liable for his tenants and their visitors sustained as a result of premises. unknown defects the Id. at This rule apply, negligently did however, not the where landlord repairs property. made to the Id. at 741. The court govern- noted that ing rule this was distinct from rule duty a landowner's to invitees and licensees at issue relating in Antoniewicz rule because the to landlords concept conveyance was derived from the of a lease as a premise relinquished and the that a landlord control possession when it was leased. Id. at then-existing ¶ 19. The court abandoned the relating liability, relying, rule common-law landlord part, on the modern of a a view lease contract, as id. at 743, and held that "a landlord under a is ordinary pre- exercise care in the maintenance although mises." Id. at 741. The noted court dispositive question Antoniewicz decision it, before much of the rationale from Antoniewicz supported rejection old common-law rule relating liability. to landlord at Id. 742-45. The court concluded: anyone
[A] landlord owes premises his tenant on the with the tenant's consent to exercise care. If person lawfully premises injured as result of in maintaining landlord's *13 from the he is entitled to recover landlord premises, general principles. Issues of notice of negligence under obviousness, the defect, premises, control of the its only they as bear on the forth all relevant insofar so are Did the landlord exercise question: ultimate all the premises in maintenance of the under care the circumstances?
Id. at 745. dog Returning arena, bite Patter- 20. Pattermann, 143, 147-48, 2d 496 v. 173
mann Wis. (Ct. 1992), family App. plaintiff at a was 613 N.W.2d when, home at her fiancé's mother's while reunion by dog standing doorway, a she bitten owned in the by plaintiff The sued home- the mother's adult son. § alleging Stat. 174.02
owner, strict under Wis. negligence. The Id. at 148. court and common-law appeals concluded that the homeowner was first § homeowner was not under 174.02 because the liable keeper dog. at of the Id. 149-51. harborer or Addressing negligence ¶ 21. the common-law [the appeals "Even if defen claim, the court of stated: dant] animal, as were not owner liable for associated landowner she dangerous dog premises." on her a with known allowed (citing Drzewiecki, v. N.W.2d361 Klimek 352 Id. at 1984)). (Mich. appeals App. However, the court Ct. plaintiff she could not recover because stated that the any dog put had forth evidence failed dangerous propensities. Id. at 151-52. Fons, Malone bar, at Similar to case (Ct. 1998), App. 746, 749,
217 Wis. 2d N.W.2d by dog by the child was owned minor bitten standing in a drive- tenant. The child was defendant's adjacent way when to the defendant's the tenant's held broke free a leash tenant's daughter plaintiff. plaintiff, and bit the Id. at *14 through guardian parents, her ad litem and her sued including the under theories, landlord various common- negligence § liability law and strict under 174.02. at Id. 750-51. Regarding
¶ 23. the claim, common-law the court rejected appeals plaintiffs' argument the that the language regarding liability in Gonzales a landlord's for injuries by dog caused his tenant's was dicta. Id. at appeals 753-54. The court of held that under Gonzales keeper a landlord is not who the owner or of his tenant's dog and who exercises no dominion control or over the dog cannot held be liable under common-law dog. for acts of his tenant's Id. at The 755. court of appeals noted that also the Gonzales rule is consistent general relating dog injuries, with the common law only which holds the or owner liable for such 1391). injuries. (citing at Id. 755-56 Wis JI-Civil appeals merely court of that reasoned ex- Gonzales tended this common-law rule into the landlord-tenant context. Id. at 757.
¶ appeals rejected plain- Next, 24. the court the arguments Pagelsdorf tiffs' that Pattermann and had Gonzales, overruled undermined at least much of its appeals rationale. Id. at 757-62. The court of distin- guished noting Pattermann, that the decision did not discuss the duties of a landlord. Further, Id. at 758. the appeals court of noted the statements in Patter- regarding mann common-law of a landowner dog a nonowned could not be regarded merely law, as as the Pattermann court as- plaintiff correctly sumed that the had stated the law and such statements were with inconsistent this court's opinion in Gonzales. Id. at 758-59. Discussing Pagelsdorf decision, the Pagelsdorf, appeals explained in rule
court of groundbreaking, was limited to defects while premises maintenance issues. Id. at Pagels- appeals court of stated that Thus, 759-61. Further, Id. at 760. did.not overrule Gonzales.
dorf plaintiffs appeals in Malone noted that the had court of authority proposition that a tenant's cited to no for the premises. Id. at a "defect" could considered appeals concluded that the circuit 762. The court of summary judgment correctly granted and dis- court against plaintiffs' negligence claims missed the Id. landlord. present make case, In the Smaxwells *15 by substantially
arguments similar to those made they argue plaintiffs First, that a land- in Malone. as duty exposing Thompson owed a of care to avoid owner, prop- guests of harm on the her to unreasonable risks argue erty. Relying Pattermann, Smaxwells that on negligence may when fails be liable she a landowner dangerous dog guests on of a known to warn protect guests precautions property or to take to fails dangerous property animals, re- from known on her gardless the landowner is owner of whether that the The Smaxwells assert of the animal. is for the a landlord liable acts issue here is not whether dog, a landowner rather, whether of her but tenant's by property to maintain her liable for failure can be allowing dangerous dogs large on the to run at known property. argue the Smaxwells that Second, chiefly longer good it law, as was decision is no
Gonzales dog dangerous could consti- a concerned with whether negli- and its attractive nuisance discussion tute an "duty." upon gence notion of the outdated law was based duty The Smaxwells assert that a landowner's towards lawfully greatly expanded by those on his Pagelsdorf Antoniewicz decisions and ordinary recognized landowner's care was not they argue when In addition, Gonzales was decided. may that Pattermann established that landowners be negligence liable under common-law for permitted property. nonowned that Smaxwells contend Pattermann established that a dangerous dog may be a land, condition on the suffi- give cient Also, rise to care. distinguished that Smaxwells contend Malone be injury on its facts because the there did not occur on the property. landowner's Finally, argue inappro Smaxwells it
priate preclude liability public policy. They based on any public policy assert that determination this case premature would Sersch, be because under Alvarado ¶55, 74, WI Wis. 2d N.W.2d jury public case should be tried to a before policy may applied preclude liability. In the argue public policy alternative, the Smaxwells that preclude liability public not should in this case because policy supports exposing landowners to for dangerous property. on animals their The Smaxwells proclaim "[t]he time come has for all Wisconsin recognize Courts to owners should be the only parties responsible protecting citizens from the *16 posed by dangerous risks known Pet'r animals." Br. at 21. Thompson ¶ contrast, In 29. contends that under only keepers dogs law, common owners and of are liable injuries might Adopting for that the animals cause. Thompson Malone, of rationale asserts that Gonzales simply extended this common-law rule to the landlord- Thompson argues addition, tenant context. In that she dogs protect guests running at her no had large liability property because a landowner's on the only property dangerous conditions on the extends dangerous Thompson dog a is not a condition. language upon which Smaxwells asserts that merely rely dicta because the from Pattermann was deciding, merely assumed, without Pattermann court plaintiff correctly Further, there stated law. that the language if the from Pattermann she that even asserts appeals of dicta, the court was without was not power to overrule Gonzales. any Thompson event, that the contends may for here is not a landowner be liable
issue injuries whether large dogs running prop- by at caused erty; a rather the is whether landlord issue by dog a owned and controlled liable for by Thompson argues that while Gonzales her tenant. doing duty, really a it was
referred to landlord's what public policy proclaiming a a of that as matter acts a tenant's should not be liable for the of landlord dog. Thompson that it was well established *17 "dog-bite Wisconsin's statute." She maintains that it has been established well under Gonzales and Malone that injuries by are not landlords liable caused their only keepers dangerous tenants' of owners injuries. Thompson animals are liable for their asks us public policy to hold that as a matter of including landowners, landlords, are not liable for dogs. nonowned parties' respective
¶ order to address the arguments, briefly we turn now and review Wisconsin's general principles negligence: of claim, a negligence establish plaintiff To must (1)
prove: duty the existence of a the part of care on (2) (3) defendant, duty care, a breach of that causal connection between defendant's breach of (4) duty plaintiffs injury, care and the actual damage loss or resulting injury. R.,
Gritzner v. Michael
68,
19,
2000 WI
235 Wis. 2d
rejected
781,
In this all have a of reasonable refrain care to from those acts unreasonably that safety threaten of others. This arises "when it can it be said was foreseeable his act or Thus, to act harm omission cause to someone." of a hinges upon foreseeability. existence Heritage Co., Antwaun A. v. Mut. Ins. Wis. 2d (1999) (citations omitted) (quot 55-56, 596 N.W.2d456 ing Corp. Inc., Builders, A.E. Inv. v. Link 62 Wis. 2d (1974)). party 483-84, 214 "'A N.W.2d he an act when some harm to commits negligent when *18 Senecal, v. foreseeable.'" Rockweit 197 Wis. someone is (1995) v. (quoting Rolph 409, 420, N.W.2d 742 2d 541 (1991)). Cos., EBI 159 Wis. 518, 520, 2d 464 667 N.W.2d to a least, "At the is to very every person subject duty care in all of his or her activities." ordinary exercise Gritzner, 2d 20. 781, 235 Wis. ¶
Thus, duty, determining the existence of a when primary question we ask is not whether the defendant (or from) actions, a certain duty has to take refrain but (or thereof) defendant's actions lack were whether the general duty to a reason- consistent with the exercise degree care under the circumstances. able Inc., Metrics, WI 30, v. Universal 16, 2002 Stephenson ¶ 251 Wis. 2d 641 N.W.2d Therefore, Wisconsin, determination in "the of public is one rather deny liability essentially policy
to
Rockweit,
address
concerns
public policy
'duty'
the defendant owed
asking whether
Mut. Cas.
victim."); Bowen v. Lumbermens
particular
("In
(1994)
Co.,
627, 644,
2d
Wisconsin,
public policy,
scope
liability.").6
of the defendant's
duty,
limits
Blackburn,
249, 257-58,
2d
But
Wis.
see Johnson
(1999)("As
matter,
general
a landlord owes
[T]he of the owner or of land toward persons upon who property come with the consent of the owner or possessor solely does not relate to defects or conditions premises. Rather, which be on such duty of an possessor owner or of land toward all persons upon who come with the of consent the owner or occupier is that of care.
300 442 Shannon, 434, 443, 2d N.W.2d Wis. Shannon (1989). unnecessary to address the Smax- Thus, it is dog may a "condition" on the contention that wells' premises. a landlord's it unclear whether However, is beyond in the leased defective conditions extends injury Pagelsdorf,
premises. of occurred because In Pagelsdorf, railing premises. the leased a rotted on Pagelsdorf specifically in Thus, 2d at 737. the issue Wis. physical duty maintain the concerned a landlord's keep premises Id. at 738. it free from defects. immunity abrogating of the old common-law Indeed, in chiefly Pagelsdorf concerned landlords, the court was physical premises keep failed to landlords who with " housing. repair good Id. and rented 'tumble-down'" (quoting Perssion, 14 Wis. 2d Pines v. at 744 (1961)). Pagelsdorf such, As 595-96, 111 N.W.2d409 specifically as follows: "We framed the issue court single by addressing appeal dispose issue of of this scope invitee his tenant's a landlord's toward premises." injured at Id. as result who defective added). (emphasis framed its addition, the court premises holding regard physical leased to the general law common . . landlord: principle "We. abolish persons nonliability of landlords toward premises." injured Id. at 744 their as a result of defective added). (emphasis *20 Pagelsdorf, that has is no case there 37. Since beyond duty care of reasonable a landlord's extended premises. physical has is, That no case in the defects Pagelsdorf specifically extended as Shannon extended conflicting law as to whether case There is Antoniewicz. duty limited to defects care is of reasonable
a landlord's
premises, or whether
of the leased
in and maintenance
general
duty
care is of a
landlord's
of reasonable
301
majority
Alvarado,
nature.7 In
262
74,
27,
Wis. 2d
a
recently rejected
of this court
the assertion of the
7
Shannon,
Compare
434,
Shannon v.
445-46,
150 Wis. 2d
(1989)
442
24
N.W.2d
(recognizing
Pagelsdorf
that the court in
Am.,
Ins. Co.
734, 745,
91 Wis. 2d
regarding owners nontrespasser towards users combines the duties of landowners landlords. See Wis jury Jl-Civil 8020. The instruction provides that an owner of *21 that it did not owe a to exercise defendant landlord who was in- care to a janitorial employee reasonable noting "everyone while an jured cleaning apartment, Yet, the care to all ordinary persons." owes a of Alvarado fell within the "defect in the premises" facts of in Alvarado Pagelsdorf plaintiff ambit of as due to the failure of the landlord discover injured " routine during inspection candle'" his 'strange looking Id., after the tenant vacated. 2-5. of the premises ¶¶ construct, ordinary manage, care to property must use exposing lawfully those on premises maintain his or her to avoid risk of harm. The instruction premises to an unreasonable provides: (An owner) (A ordinary possessor) property of must use care (construct) (main- (manage) existing circumstances to
under tain) premises exposing persons property his or her to avoid an unreasonable risk of harm. with consent to great "Ordinary degree care which the mass of care" is the of people ordinarily circumstances. A uses under the same or similar when, intending any ordinary do person without fails to use care precaution wrong, under an act or omits he or she does ordinary intelligence person of circumstances in which a reasonably will prudence foresee that the act or omission should subject person property an unreasonable or of another to another injury damage. or risk owner) (a (an possessor) premises duty, performing In this or defects on the care discover conditions must use expose person unreasonable risk of harm. to an which (owner) (possessor) and the risk of harm existed If an unreasonable (he) (she) it, or, ordinary care should if in the use of was aware of (his)(her) it, duty to either correct then it was been aware of have danger persons or of the condition or warn other the condition under the circumstances. risk as was reasonable Shannon, 2d at 150 Wis. light Wis JI-Civil far as a landowner's incorrectly states the law as instruction duty is concerned. *22 Despite inconsistency regarding
¶ this
how
interpreted Pagelsdorf holding,
courts have
s
all of the
involving
liability
in
cases Wisconsin
landlord
under the
Pagelsdorf rule concerned actual
in
defects
the leased
(firework
premises. Alvarado,
¶¶
74,
262 Wis. 2d
2-5
resembling
apartment);
candle
in
A.,
left
Antwaun
288
(lead paint
apartments);
Wis. 2d at 57
in
Johnson v.
(1999)
Blackburn,
249,
2d
252,
Wis.
595 N.W.2d676
(smoke
allegedly
improper location);
detector
located in
(rotted
Pagelsdorf,
railing
¶ danger- 39. We need not decide whether a dog may premises ous constitute a "defect"in the rental or whether a landlord's care extends beyond physical pre- defects in or maintenance of the ultimately public policy mises because we conclude, on grounds, liability that common-law of landowners and negligence landlords for associated with by dogs is limited to situations where the landowner or dog causing landlord is also the owner or of the injury. purposes is, That for decision, of this we Thompson's assume that conduct constituted action- negligence capacity able either in her as a landowner general particular. supra, or landlord in As noted Wisconsin, even if all the elements for a claim of proved, liability negligent are conduct by may court, is assumed the court nonetheless preclude liability public policy based on factors. Stephenson, 251 Wis. 2d public policy analysis separate A40. is determining
distinct from whether a in a exists particular public policy pre- Id., ¶ case. 41. Whether cludes ais matter of law that decided is this policy recovery court de novo. Id. Public against bar negligent tortfeasor if this court determines any following:
(1) (2) injury too negligence; remote from the *23 injury wholly proportion is too out of to the tortfeasor's (3) culpability; retrospect appears highly it too extraordinary negligence brought the should have (4) harm; allowing recovery about the place would too (5) tortfeasor; upon unreasonable a burden the allow- ing recovery likely way would be too the open to (6) claims; allowing recovery fraudulent or would have just stopping point. no sensible or
Id., ¶ 43. Liability may solely
¶ 41. be denied basis Co., one of factors. these Rieck v. Med. Protective 64 (1974). 514, 518, Wis. 2d 242 219 N.W.2d This court has generally practice stated that the "better is to submit jury determining the public policy case the before whether the preclude liability." considerations Alva rado, 74, "However, 262 2dWis. where the facts presented simple question public policy are and the fully presented by complaint and the motion for summary judgment, public this court make the policy Sawyer determination." 2d 227 Wis. Midelfort,
305 (1999). "[t]he Thus, assess 423 124, 141, 595 N.W.2d necessarily require public policy a full ment of does This cause of action trial. factual resolution of the questions public policy has, decided such can, court (cita Stephenson, ¶ 42 2d 251 Wis. on demurrer." omitted). nonliability Ultimately, finding "[a] tions question public policy which is a of law made in terms of Rockweit, 2d at 425. decides." 197 Wis. the court alone analysis by begin public policy not- our 42. We ing traditionally, sub- common law Wisconsin's liability only keepers jected of animals owners injurious for their acts: dog
At or of a common law owner dog or mischievous acts of the not liable for the vicious mis- prior knowledge he had of the vicious or unless dog injury propensities chievous of the or unless negligence of the owner or was attributable to keeper. Gorelik, 523, 528, 2d 191 N.W.2d
Chambliss v.
Wis.
(1971).8
regarding
rule
The common-law
113, 103 N.W.2d
Hansen,
2d
See also Nelson v.
10Wis.
(1960)("In
was not
this state at common law
owner
resulting
act of his
damages
liable for
vicious
prior knowledge
propensities,
he had
of its vicious
unless
part
injury was attributable to some
on
(not
owner[.]")(citations
Malone,
omitted);
We
the Smaxwells1 contention
Pattermann,
143,
2d
appeals' decision in Pattermann v.
173 Wis.
(1992),
that a landowner could
496 N.W.2d613
established
negligence theory
be liable under a common-law
The
dangerous dog
premises.
allowed on her
known
no substantive
proclamation
Pattermann court made this
with
analysis,
had held
despite the fact that no other Wisconsin court
Leeder,
in
acts of
White v.
explained
(1989):
948, 955-56,
Wis. 2d
(Emphasis "[t]he owner or is predicated the failure to exercise ordi- upon in nary care the restraint and control of the animal." Id.
at 958.9 It was with this of the com- understanding mon law that the relating injuries by animals Gonza- les court rejected dissent's assertion such, only as appeals cited to a court of decision from Drzewiecki, Michigan. (citing See id. Klimek 352 N.W.2d361 (Mich. 1984)). App. Further, Ct. because a landlord also be landowner, arguably this statement from Pattermann conflicts Wilkinson, 154, 155, with our decision in Gonzales v. 68 Wis. 2d (1975). 227 N.W.2d907 rule is common-law summarized Wis JI-Civil Liability Keeper of Owner or of Animal: a(n) (note: animal) (keeper) An owner insert name deemed to be aware natural traits and habits which are a(n) (animal) ordinary
usual to
and must use
care to restrain and
control the animal so that it will not in the exercise of its natural
injury
damage
person
traits
habits cause
or
to the
or
of another.
addition,
(keeper)
if an owner
is aware or in the exercise of
ordinary
any
possesses
care should be aware that the animal
likely
injury
unusual traits or habits that
would be
to result
or
damage,
(keeper)
then the owner
must use
care to
necessary
prevent
injury
damage.
restrain the animal as
*25
against
complaint alleged
plaintiffs
a cause of action
negligence:
in
the defendant landlord
allegation
we
no
examining
complaint
the
find
that
was either the owner or the
[the defendant]
of
any
alleged
any way
that he in
had
dog,
the
nor is it
dog.
allegation
an
that he
the
There is
dominion over
tenant,
plaintiff],
[the
maintained
vicious
knew his
him,
require
premises
on the
but the law does
building,
to be an insurer for
as the owner of
allegations
of this com-
acts of his tenant. Under
ownership
and control of the
plaint, we hold that
part
of the owner of
premises created no
premises
plaintiff.
to the
added).
(emphasis
Gonzales,
took
and decided
response
Malone,
in
to the dissent.
217 Wis.
this issue
(citing
Taylor,
670,
664,
2d at
v.
205 Wis. 2d
754
State
1996)).
(Ct. App.
As the Malone court
language utilized in reference to the Gonzales supra, "duty" noted defendant's is outdated. As persons care to Wisconsin "all have reasonable unreasonably threaten the refrain from those acts that (citing safety A., Antwaun 228 2d at 55 others." Wis. Light Co., Klassa Milwaukee Gas Wis. (1956)). Gritzner, also 2d
N.W.2d397 See Wis. ("At very every person, subject ¶ 20 least, to a *26 exercise care all of his or her activities."). preclude liability Thus, the decision normally public policy, should be based on rather than duty. Id., notion the of
¶ 46. the Yet, of Gonzales court's choice words significance does not the diminish of the decision. The opined Gonzales court that a landlord should not be- simply by come the for insurer the of his tenant acts owning premises. of Gonzales, virtue the 68 Wis. 2d at sentiment, doubt, 158. This no was based fact liability dogs that common-law for the acts of premised ownership on and control the over animal. However, the concern that not landlords should become premised insurers question their tenants' acts is not on a duty; policy only of rather, it is a decision that those who have dominion or exercise an control over injuries.10 animal should be liable for the its As Malone limiting noted, court the of landlords to those who exercise control or dominion11 over —owners 10The provides keeper common law that an owner or of a dog breaches his of care he when fails to restrain or control the animal. See Civil Wis-JI 11Case dog" law has established that "dominion over a is synonymous custody dog, with control and over the and one over dog" whether exercises "dominion is relevant to an a "keeper" dog. individual's status as the of Thus: apparent keeper dogmay may It is the that of a not be the owner dog. keeper owner, assumed, may of the the Where is the it general authority proposition, as a that dominion or of the the one, keeper dog subject over the is a limited to be at terminated any special circumstances, time the owner.In the of the absence keeper dog any owner terminate the the at dominion over the custody keeper. time the and remove done, authority moment that the dual is theretofore exercised over placing salutary policy 'promotes keepers —" belongs, fostering responsibility rather than where it owner, merged dog by in the the owner and the responsibilities keeper's rights and very moment the at concerning dog are end. at an (1926) Voss, 222, 224, 207 N.W. Janssen Wis. added). words, In other once individual ceases (emphasis is, dog, once he ceases to have over exercise dominion longer a dog, individual is no custody and control (7th 1999)'(de- Dictionary 502 ed. "keeper."See also Black's Law "[cjontrol; possession"). fining "dominion" as one "keeper" keeps, as "one 'who The Janssen court defined Janssen, watches, etc.; having custody.'" guards, one who omitted). (citation authority has *27 224 defined at Another Wis. " proprietary aspect, 'Keeping' as has "keeping" follows: for, the having custody or or control of caring defined as often Veilleux, Annotation, Liability to Danny R. Landlord's animal." From Attack on Leased Injury Resulting Person Third for Tenant, by 87 by Kept Animal Dangerous or Vicious Premises (1991). 1004, comports definition with 4th 1015 This A.L.R. "keeper" purposes of the courts defined for how Wisconsin have 174.001(5) §§ & 174.02. For "dog bite statute." See Wis. Stat. Co., Armstrong in Milwaukee Mut. Ins. example, this court v. (1996), 258, 267, relying 2d 723 on 202 549 N.W.2d Wis. Janssen, 224, keeper person be a "the 189 2d at held that to Wis. custody, or in measure of care question must exercise some dog." control over the event, Thomp- that any completely agree "the Smaxwells control or dominion actually anything do exercise
son didn't added). "All the dogs." Reply (emphasis Br. at 5 of over the Pet'r any did over parties agree Thompson that not exercise control specifically 11. The circuit court Pet'r Br. at these animals." "Thompson summary judgment in for that noted its decision caring dogs." in for Both the circuit court no active role took appeals precluded of here based on and court keepers dogs may only owners and of common-law rule by dogs. The Smaxwells have not liable
310 search for a defendant whose affluence is more appar Malone, ent his than Wis. at culpability.'" 2d 767 (Wash. Fidler, Clemmons (quoting P.2d 1990)).12 Ct. App. heart of this sentiment is a policy determination, an not of duty. evaluation issue modern we Framing parlance, conclude allowing recovery against landowners or who landlords are neither nor of owners keepers dogs is, landowners or landlords who do not have —that control or over of custody dogs causing injury — on or someone around their would have simply no or just sensible stopping point.13 "When analyzing once Thompson dogs. contended that a "keeper" Bayard's was Indeed, readily any Smaxwells admit that the lack of control Bayard's over part dominion forms very "the basis for the Pet'r Smaxwells' claims." Reply Br. at 5-6. Malone, We note that in 217 Wis. plaintiff 2d at injured by was a dog owned in a defendant's tenant driveway adjacent property. to the defendant's 13 Contrary asserts, to what the we do avoid a dissent not fact our inquiry making public policy intensive determina Dissent, facts, key tion. 74. The which undisputed, are are custody that Thompson Bayard's dogs did not have did short, the animals. In she not control an owner or employ of the animal. We do not a blanket as limitation Rather, suggests. the dissent Id. allowing we conclude that *28 liability custody where does not have landlord/landowner dog injury is, or over causing control where the —that is or keeper dog defendant neither the owner of the —would enter just stopping a field that no or The point. has sensible actually determination of or had whether landowner landlord custody dog injury or control over the at the time of the will However, usually jury question. parties agree be a here the did custody Bayard's dogs did not have over exercise control over them.
311 factor, must deter- action under the sixth we cause of point at a line can which mine if there will be sensible present liability imposed This in the case. if be drawn anticipate analysis presupposes that we extent of Stephenson, liability Wis. 2d in cases." future omitted).14 added)(internal (emphasis ¶ n.6 citation regardless egregiousness of facts Thus, egregious contemplate us, we less case before must imposed. liability may circumstances under which be recovery Allowing against ¶ landowners 48. keepers of the owners nor
landlords who are neither general negligence principles have under would regarding profound consequences landowner and both liability. begin exposing to with, To landowners landlord liability essentially to fence such force them would Imagine neighbor property. a homeowner whose their dog large. dog run often comes onto his to at allows property and the homeowner com- the homeowner's plains neighbor occasions, but to no to the on several guests day and, has over One the homeowner avail. dog again neighbor's enters him, to his unbeknownst upon guest. Under the his land and bites his Smaxwells' potentially proposed rule, this could homeowner liable. opposition Indeed, Smaxwells' brief in summary judgment for in the
the defendants' motions following opens "The circuit court with the statement: recognize for time has come Wisconsin Courts only parties responsible owners should not be posed by protecting from the risks known citizens neighbors dangerous .. . can all Landlords, animals. liability in Essentially, we conclude that were we to allow general negligence principles, under we would present case that "involve the wan expose landowners cases Dissent, neighborhood dog." derings of a run-of-the-mill *29 help protect danger- have a to from others known added.) (Emphasis problem ous animals." The is that simply just stopping point liability there would be no accept proposed were we to pressed the Smaxwells' rule. When argument liability at oral as to where for end, landowners would counsel for the Smaxwells could identify any point, always not such as there would be a jury question as to whether the landowner knew or dangerous dog should have known that a known was on premises. guests if his Even the landowner did warn his dangerous property, of a known animal on his there always jury question would be a as to whether the landowner's actions satisfied the care specific under the In short, circumstances. there is nothing erecting a landowner could do, short of a fence property, around his exposed to ensure that he would by dog that he keep. does not own or
¶ 50. That landowners would be forced to fence in
Michigan
their
is evident from the
court of
appeals
upon by
decision relied
Pattermann when it
summarily concluded that landowners could be liable
injurious
property.
for the
acts of nonowned
on plaintiff
Pattermann,
Klimek,
holding complaint was sufficient to state unsupervised action, cause of the court loose, ruled: "a dangerous dog either on defendant's land or in close proximity any land without obstacle to defendants prevent entering it land a 'condition defendant's added) omitted). (citation (emphasis land[.]'" Id. *30 allowing liability
¶ Moreover, such would con- 51. legislative policy in enacted Wis. Stat. flict with liability imposes § for 174.02, which strict by dog.15 liability statute, a is limited Under category keepers owners, a that includes and harbor- to 174.001(5) 174.02(1).16 §§ & statute ers. Wis. Stat. penalties imposed "are in that the therein addi- states imposed any liability other on the owner of a tion to added). 174.02(2)(c) § dog." (emphasis Wis. Stat. exposing liability
¶ addition, to 52. landlords consequences. it seem have similar While would knowledge impute tenant's reasonable to of a vicious relatively dog duplex a a to a landlord rents or who many motel, landlords rent small converted urban complexes apartment dozens, to if not multiunit hun- plaintiff injured by However, a dreds, of tenants. dog always argument make the that a tenant's could presence of of the landlord should have known dog dangerous or have known of its tenant's propensities. should
Charging these landlords with construc- knowledge propensities tive of the and behavioral his- liability tory dog exposing of each tenant's them As court have drastic results. the Malone ex- would subjecting plained, landlords who are neither owners liability keepers in of would result individu- nor being do not their own homes unable to als who own dogs: their "Landlords and insurance carriers own 15 appropriate [public policy] is also to look at the "[I]t light legislative Stephenson in of relevant enactments." factors Inc., 30, Metrics, 171, 2d 2002 WI 251 Wis. v. Universal 641 N.W.2d " any purposes chapter For the 'Owner' includes harbors, keeps owns, dog." Wis. Stat. person who 174.001(5). § keep any dogs
would be reluctant to allow tenants to for liability development deprive fear of .... Such a would are those who unable to afford their own of the homes many positive dog ownership." Malone, benefits of 2d at Wis. 766-67. Finally, authority gen- noted, as one has purpose bringing "[t]he against party
eral, an action who is neither the owner nor the
primarily
plaintiff
related
need for the
to reach a
deep pocket...."
2 Am. Jur. Proof of Facts 3d
Liability
Injury By
Dog 393,
Landlord's
Tenant's
(1988).
agree
appeals'
We
with the
court
sentiment
limiting
*31
Malone that
the
of landlords when
they
keepers
dogs causing
are neither owners nor
of
injury
on or around their
fosters the sound
policy
ensuring
liability
placed upon
of
that
is
person
belongs
promoting
with whom it
rathér than
practice
seeking
of
out the defendant with the most
Malone,
affluence.
17Interestingly, agrees Thompson the dissent that should responsible dogs not be for the conduct of she neither owns nor keeps, liability but nevertheless would allow in this case. Dissent, 57, 81. ¶¶ only We note that do not create a blanket rule we that and keepers negligence injuries owners are liable in for by dogs. merely caused We hold a landlord or landowner capacity not be liable in his as a or he landowner landlord unless keeper dog causing injury. is also the or owner
VI. CONCLUSION policy public factors, ¶ hold, based on 55. We and landlords for of landowners common-law by dogs associated with landlord is the landowner or limited to situations where causing injury. keeper of the the owner or also egregious, the case before us are the facts of While allowing liability the defendant in this instance —where nor is neither owner landowner/landlord dogs causing injury no enter a field that has —would just stopping point. sensible ¶ By court of Court.—The decision of the appeals is affirmed. opinion completed on or before
All work on this July Sykes resigned Diane on 30, 2004. Justice S. June 4, 2004. (dissenting). I BRADLEY,J. 57. ANN WALSH majority
agree cannot with the Gloria responsible I of her tenant. also held for conduct be responsible agree be held that she cannot majority, hybrid dogs. Unlike the conduct of the wolf public policy however, I believe that both law responsible support can held the conclusion that she Accordingly, respectfully I dissent. for her own conduct. On are troublesome. 58. The facts this case *32 three-year-old Tatum Smaxwell was 15, 1999, June hybrids. morning, by Tatum, three wolf That attacked visiting her mother, aunt, and her were her grandmother's and The three adults were inside home. five-year-old go her allowed to outside with Tatum was her. Nick, who offered to watch cousin running ¶ back time, After a short Nick came 59. hurting screaming dogs house, that the were into the hybrids, weighing ap- each Three of the wolf Tatum. attacking top pounds, proximately on of Tatum were away getting Tatum from The adults succeeded her. injury.1 dogs, sustained serious not before she the but place on ¶ took 60. The assault Thompson She also she resided. and on which owned dogs' Bayard, adjacent the Melva lot that the owned breeding enterprise. hybrid owner, used for wolf dogs Bayard Thompson without the there let kennel property. any charging of that rent for the use her had been more ¶ attack, there Prior to 61. Bayard's neighbors complaints about than 70 complaints expressed dogs. Many fear over of the dogs threatening over the and concern nature of the large. being dogs at to run allowed Although Thompson the exact did not know
¶ 62. property, dogs kept was aware she number of dogs complaints were knew that several and hybrids. Thompson en- aware that law was also wolf personnel visits concern- had made several forcement ing police dogs dogs, had bitten one of the and that officer. in connection received a citation dogs reflects that The record in mid-1990s.
with Bayard, citations number of received a tenant, the regarding dogs. Many received the citations she allowing maintaining proper and kennel involved large. at to run majority this the facts of concedes 64. The Majority op., ¶ it egregious. Nevertheless, case are being mauled result of alleges that as a complaint injuries as follows: hybrids, Tatum sustained the wolf cheek, open body, to her an wound Multiple her face and bites to open eyebrow, and wounds open her forehead [sic] and wound eyelid back, to her face, neck, hip, thigh, and a contusion her eyelid fold .... periocular and lacera *33 public policy holds, liability on factors, based that common-law negligence landowners landlords for by dogs associated with is limited to situations where the landowner or landlord is also the dog causing injury. Contrary owner or Id. majority, to the I would not immunize from responsibility for her own conduct. majority correctly recognizes, Thomp- 65. As the general duty
son, ordinary landowner, as a owed a to exercise legally upon care to all those who came her property. Holding responsible Id., ¶ 35. landowners deeply their own conduct is embedded in our common law. Reszczynski,
¶ 66.
In Antoniewicz v.
70 Wis. 2d
(1975),
836, 856-57,
Id. defendant maintained that he owed no plaintiff dangers to warn the of hidden because the plaintiff awas licensee. Id.
¶ 67. The circuit court in Antoniewicz determined although existing precluded plaintiff that, law recovery, that law was archaic and had no rational denying liability. agreed, basis for Id. at 839. This court concluding required duty occupier that the of the land ordinary be one of care under the circumstances. Id. It explained: persons toward all upon property who come
with the consent of the occupier will be that By care. ordinary care, such standard of we mean standard that is used in all other cases in *34 test, repeatedly that as we have Under Wisconsin.... by ascertaining
stated, negligence is to be determined foreseeably care exercise of the defendant's whether others. unreasonable risk to created an Id. at 857. Shannon, 2d.
¶ 150 Wis. 68. Shannon (1989), extended the this court N.W.2d physical premises. beyond the Antoniewicz framework showing that without court had concluded The circuit injury plaintiffs or related to a defect was that property, defendants on the defendants' condition summary judgment. Id. at 442. This entitled to were duty observing disagreed, of a landowner that the court premises: on the limited to defects or conditions was conclusion, duty Contrary to the circuit court's persons who possessor of land toward the owner or of the owner or the consent upon property with come solely defects or conditions not relate possessor does Rather, duty of an premises. may be on such which who come persons of land toward all possessor owner or occu- of the owner the consent upon property with ordinary care. pier is that
Id. at 443. Accordingly, Wisconsin, a landowner's limited to defects care is not to exercise reasonable premises. physical Rather,
in or conditions always care under use must landowner specifically existing limited unless circumstances principle Applying case, I facts of this to the this law. erroneously summary judgment was conclude negli- Thompson's granted common-law on the issue of gence. Thompson her to maintain had a Here, protect reasonably
property condition safe in a guests on her from unreasonable risk of harm. dangerous hybrids She knew about the wolf and that they periodically running large property. were at on her Bayard Moreover, it had become clear that was not going dogs. to take action to control Yet, her nothing protect three-year-old granddaugh- did her ter from harm. jury
¶ 71. I believe could determine that it reasonably foreseeable that her failure to act would grandchild. summary judg- cause harm to her Thus, granted. question ment should not have been gone jury. should have to a majority, ¶ 72. The however, does not allow *35 go jury. case to to a Instead, it assumes precludes liability public policy.Majority of basis op., majority ¶ allowing liability 39. The reasons that where the landowner or landlord is neither the owner dogs causing injury nor would enter a field just stopping point. ¶ has no Id., sensible or 2.
¶ majority employ- 73. I conclude that the errs ing public policy considerations to arrive at its blanket immunity liability. Properly applied, public rule of from policy liability considerations should not limit here, but public policy encourage holding rather should landown- responsible negligence. ers for their own acts of liability
¶ public policy 74. Limitation of based on inquiry. is a fact-intensive A variation in the facts can public policy render a different conclusion. Yet, majority employs by limitation, blanket which defini- inquiry normally tion eschews the fact-intensive liability analysis. attends the limitation of persuaded ¶ majority's I am not fear just stopping point liability that there would be no to prevail. majority were Smaxwell to contends that exposing liability essentially landowners to such would property. Id., all fence force landowners to their ¶ 48. concern overstated. This case did not This neighbor- wanderings involve the of a run-of-the-mill dog. unique danger, Rather, involved a of hood this It from which was aware. emanated within where resided. the confines of she Thomp- ¶ number of measures 76. There were a erecting protect could taken to others short son have property. example, to her For a fence enclose entire she grandchildren play required could already her to in her have backyard. She have fenced-in could evicted Bayard premises repeated for her citations. large prohibited kennel enter-
She could have such place. Finally, prise in have the first she could warned guests allowing play against her children to outside unattended. Similarly, persuaded
¶ 77. I of the need for am not majority's immunity a blanket rule of based on may hypotheticals. I am mindful that it nec- other essary be grounds liability preclude in some cases on public public policy. preclusion instance, based on For renting policy may proper case of a landlord in the be complexes apartment multiunit to hundreds tenants. public appro- policy
Id., Likewise, used in preclude priate as a a landowner's cases impose liability neighbor. Id., cases, 48.2 In some *36 2 drawing This line determinations grappled court has with neighbor. In liability of a involving in other contexts Co., WI 80, Physicians Corp. Ins. v.Midwest Mut. Ins. Plus 777, to required 646 N.W.2d we were determine Wis. 2d liability might upon which, any, parties imposed. if several this strictly based on the facts of responsibility "Because just case...," no sensible or rejected argument that we Id., Indeed, point we later noted stopping ¶ could be found. 51. precluded imposition public policy that considerations place on the landlord could too unreasonable a burden. But those are not the facts here.
¶ knowingly This is case about a woman who permitted property poorly-managed hy- on her wolf breeding enterprise. Thompson brid To hold liable need parade majority result in the of horribles the invokes. proper public policy analysis
¶ 79. A in this case Thompson fencing property. would not result in in her Thompson taking Rather, it would result in the neces- sary prevent dangerous hybrids measures wolf running large young at on her when her grandchildren unsupervised, play. outside, are at majority's blanket rule would deter rather than encour- age responsible behavior.
¶
previously
"[t]he
80. We have
stated that
cases
causally negligent
in which a
tort-feasor has been
liability
infrequent
present
relieved of
are
unusual
and extreme considerations." Stewart v.
85 Wis. 2d
Wulf,
(1978).
461, 479,
her tenant's wolf I Thompson responsible Because conduct. for her own policy support public both the law believe that liability, respectfully exposure Thompson's I dissent. Justice that Chief I authorized to state am joins opinion. this S. ABRAHAMSON
SHIRLEY notes everyone in owed of that Wisconsin time Gonzales everyone Further, she care to else. of holding Pagelsdorf in was limited maintains that the involving not and did defects rental cases liability of the acts her tenant's extend a landlord's for dog Thompson dogs. that a tenant's asserts premises. in the "defect" public policy Finally, asserts preclude this case. She contends should liable for acts a nonowned a landlord should not be Further, no or dominion. over which she has control legislature has maintains that established she only holding keepers policy owners and clear § dog injuries 174.02, Wis. Stat. under liable