Cox v. Hayes
34 Mich. App. 527, 1971 Mich. App. LEXIS 1642, 192 N.W.2d 68 (1971)
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Rule of Law:
Under Michigan's dog bite statute, a person is considered lawfully on private property if they are an implied licensee of a person in lawful possession of the property. Lawful possession is determined by control over the premises and is not limited to the property's legal owner, but can extend to a resident family member.
Facts:
- Pamela Sue Cox, a three-year-old deaf mute, frequently played with the defendants' (Hayes) 17-year-old daughter and her own 13-year-old sister.
- The Hayes family owned a 135-pound great Pyrenees dog that was kept chained in the backyard of their property.
- Mrs. Hayes testified that she had told her daughter not to have other children play on their property.
- Despite this instruction to her daughter, Mrs. Hayes never directly told Pamela or her family to stay off the property, nor did she ask them to leave when they were seen there.
- On the evening of the incident, Mrs. Hayes was not home, but her teenage daughter was.
- Pamela was playing in the Hayes's front yard with other neighborhood children before wandering into the backyard where the dog was chained.
- The dog bit Pamela, causing permanent injuries.
Procedural Posture:
- Pamela Sue Cox, through her mother, filed a lawsuit against the dog's owners, the Hayes family, in a Michigan trial court, seeking damages under the state dog bite statute.
- The case was heard in a nonjury trial (bench trial).
- The trial court found in favor of the defendants and entered an order of 'no cause of action.'
- The plaintiff, Pamela Sue Cox, appealed the trial court's order to the Michigan Court of Appeals.
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Issue:
Does a minor child have the status of an implied licensee, and is thus 'lawfully on the property' under the Michigan dog bite statute, when their presence is tolerated and implicitly permitted by the property owner's resident teenage daughter?
Opinions:
Majority - J. H. Gillis
Yes, a minor child can be considered an implied licensee of the property owner's teenage daughter, thus making the child 'lawfully on the property' under the state's dog bite statute. The trial court erred by holding that only the legal owners could grant a license to be on the property. The statute, while strictly construed, must be interpreted according to its plain meaning, which includes implied licensees. A person can be in 'lawful possession' of property without being the owner; control is the crux of possession. Here, the defendants' teenage daughter had a lawful possessory interest, particularly when home alone. An implied license is created through acquiescence and a pattern of tolerated presence, which the facts support, as the defendants never objected to the children playing in their yard. Therefore, the plaintiff could have been an implied licensee, and the trial court's finding to the contrary was an error of law.
Analysis:
This decision significantly clarifies and broadens the scope of owner liability under Michigan's dog bite statute. It establishes that 'lawful possession' is a question of control, not just legal title, thereby allowing resident family members to grant licenses. Furthermore, the court affirms that an implied license, arising from silent acquiescence and a failure to object, is sufficient to meet the statutory requirement of being 'lawfully on the property.' This precedent makes it more difficult for dog owners to evade liability by claiming a child was a trespasser, especially in common neighborhood situations where children frequently play on each other's properties without express, formal invitations.
