Brans v. Extrom
701 N.W.2d 163, 266 Mich. App. 216 (2005)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under Michigan's dog-bite statute, MCL 287.351, an unintentional act can constitute provocation sufficient to relieve a dog owner of strict liability. The statutory term 'provocation' focuses on the nature of the act and its effect on the animal, not the intent of the person who committed the act.
Facts:
- Kathleen Brans and her husband, Fred Brans, were visiting the home of their relatives, Barbara and John Extrom, to help prepare their yard for a wedding.
- Kathleen Brans and John Extrom were carrying a section of chicken wire out of a dog kennel.
- John Extrom walked forward while Kathleen Brans walked backward.
- While walking backward, Kathleen Brans accidentally stepped on the Extroms' elderly Australian Shepherd, Pepe.
- Immediately after being stepped on, Pepe yelped and bit Kathleen Brans on the leg.
Procedural Posture:
- Kathleen and Fred Brans (plaintiffs) sued Barbara and John Extrom (defendants) in a Michigan trial court, alleging liability under the state dog-bite statute and common-law negligence.
- At trial, over the plaintiffs' objection, the trial judge instructed the jury that provocation under the statute could be either intentional or unintentional.
- The jury returned a verdict in favor of the defendants, finding that the dog had been provoked.
- The trial court entered an order of dismissal based on the jury's verdict.
- The Branses (appellants) appealed the dismissal to the Michigan Court of Appeals, arguing the jury instruction on provocation was erroneous.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an unintentional act, such as accidentally stepping on a dog, constitute 'provocation' under Michigan's dog-bite statute, MCL 287.351, thereby relieving the dog's owner of strict liability?
Opinions:
Majority - Per Curiam
Yes, an unintentional act constitutes provocation under Michigan's dog-bite statute. The court reasoned that the statute does not define the term 'provocation,' so its plain and ordinary meaning must be used. Consulting a dictionary, the court found that provocation is defined as the act of inciting or causing a reaction, a definition which does not require intent. The court concluded that the focus is on the nature of the act itself and its effect on the dog, not the intent of the actor. The court further noted that if the Legislature had intended to limit provocation to intentional acts, it would have specified this, as it has in other statutes. Finally, the court found that its conclusion was supported by the Michigan Supreme Court's decision in Nicholes v. Lorenz, where the court implied that the accidental nature of an act was irrelevant to the question of provocation.
Analysis:
This decision clarifies a significant ambiguity in Michigan's strict liability dog-bite statute by defining 'provocation' to include unintentional acts. It establishes an objective standard for the provocation defense, focusing on how a reasonable dog would react to a certain action, rather than the subjective intent of the person bit. This interpretation lowers the barrier for dog owners to assert a provocation defense, potentially shifting some liability away from owners and onto individuals whose accidental actions lead to a bite. Future cases will likely focus on the factual question of whether a specific unintentional act was sufficient to provoke a normal dog under the circumstances.
