Cox v. Hayes
1971 Mich. App. LEXIS 1642, 192 N.W.2d 68, 34 Mich. App. 527 (1971)
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Rule of Law:
Under a strict liability dog bite statute, a person is "lawfully on" private property as an implied licensee if their presence is tolerated by a person in lawful possession of the property. Lawful possession is determined by control over the premises and is not limited to the legal owner, but can include a resident family member such as a teenage child.
Facts:
- Pamela Sue Cox, a three-year-old deaf mute, frequently played with her 13-year-old sister and the 17-year-old daughter of the defendants, the Hayeses.
- The Hayeses owned a 135-pound Great Pyrenees dog, which they kept secured by a 25-foot chain in their backyard.
- Mrs. Hayes had instructed her 17-year-old daughter not to have other children play on their property.
- Despite this instruction, neither Mrs. Hayes nor any other family member ever told Pamela or other neighborhood children to leave the property, and did not ask them to leave when they were seen playing there.
- On the evening of the incident, Mrs. Hayes was not at home.
- Pamela Cox, who had been playing in the Hayeses' front yard with other children, wandered into the backyard area where the dog was chained.
- The dog bit Pamela, causing permanent injuries.
Procedural Posture:
- Pamela Sue Cox, through her next friend, sued the Hayeses in a Michigan trial court for damages under the state's dog bite statute.
- The case was decided in a nonjury trial.
- The trial court entered an order of no cause of action, finding in favor of the defendants.
- The trial court ruled that under the statute, only the property owners, not their teenage daughter, could grant a license to be on the property.
- The plaintiff, Pamela Sue Cox, appealed the trial court's order to the Michigan Court of Appeals.
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Issue:
Is a child who enters a property with the implied permission of the owners' teenage daughter considered "lawfully on" the property as a licensee for the purposes of holding the owners strictly liable under a dog bite statute?
Opinions:
Majority - J. H. Gillis
Yes. A child on a property with the implied permission of a resident is considered a licensee and is therefore "lawfully on" the property under the state's dog bite statute. The court reasoned that the statute, while in derogation of common law, should not be construed so strictly as to defeat its legislative purpose. The term "licensee" in the statute inherently includes implied licensees, whose presence is tolerated through acquiescence or permission. The court further held that a "person lawfully in possession" is not limited to the property owner but includes anyone with control over the land, such as the defendants' teenage daughter, especially when she was home alone. Because the Hayeses knew children frequently played on their property and never asked them to leave, their silence and acquiescence created an implied license for Pamela Cox to be there.
Analysis:
This decision significantly broadens the scope of potential liability for dog owners under Michigan's strict liability statute. It clarifies that the status of being "lawfully on" property is not limited to express invitees but includes implied licensees, particularly children whose presence is known and tolerated. By defining "person lawfully in possession" based on control rather than ownership, the case establishes that non-owner residents can create a license, making it more difficult for property owners to disclaim responsibility for visitors who were not personally invited by the owner themselves. This precedent lowers the bar for plaintiffs in dog bite cases by focusing on the possessor's tolerance of a person's presence rather than on a formal invitation.
