Malone Ex Rel. Bangert v. Fons
217 Wis.2d 746, 1998 Wisc. App. LEXIS 347, 580 N.W.2d 697 (1998)
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Rule of Law:
A landlord who does not own, keep, or exercise dominion over a tenant's dog is not liable under common law negligence for injuries caused by the dog. Furthermore, a landlord is not a 'harborer' of a tenant's dog for purposes of statutory strict liability merely by permitting the tenant to keep the dog on the leased premises.
Facts:
- Joseph Fons rented a single-family home to Barbara Garner under a rental agreement that prohibited pets.
- Despite the agreement, Garner kept a Rottweiler dog at the property.
- The Rottweiler allegedly broke free of its leash and placed its jaws around another child's arm in a prior incident.
- The father of the child from the first incident allegedly informed Fons about the occurrence and complained about the dog.
- On March 22, 1994, Garner's Rottweiler, while being held on a leash by one of Garner's children, broke free.
- The dog then mauled eight-year-old Sarah Malone in a driveway adjacent to the rented property, causing serious injury.
- Fons charged Garner a monthly rent payment that included an itemized charge of $14.29 for 'Insurance', which Fons claimed was for fire insurance on the property.
Procedural Posture:
- Sarah Malone and her parents (the Malones) initially sued Barbara Garner, the dog's owner, in a Wisconsin trial court.
- The Malones subsequently amended their complaint to add Joseph Fons, the landlord, and his insurer as defendants.
- The second amended complaint alleged common law negligence, strict liability under § 174.02, Stats., and a third-party beneficiary claim against Fons.
- Fons filed a motion for summary judgment to dismiss all claims against him.
- The trial court granted Fons's summary judgment motion, dismissing all claims against him and his insurer.
- The Malones (appellants) appealed the trial court's judgment to the Court of Appeals of Wisconsin, with Fons as the respondent.
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Issue:
Is a landlord liable under either common law negligence or Wisconsin's strict liability dog-bite statute for injuries caused by a tenant's dog, when the landlord knows of the dog's presence and its prior alleged mischievous behavior, but does not own, keep, or exercise dominion over the dog?
Opinions:
Majority - Curley, J.
No, a landlord is not liable under either common law negligence or Wisconsin's strict liability statute under these circumstances. For a common law negligence claim, the precedent set in Gonzales v. Wilkinson holds that a landlord is not an insurer for the acts of a tenant's dog and owes no duty to third parties if the landlord is not the owner or keeper of the dog and exercises no dominion over it. The court determined this language in Gonzales was a binding holding, not dicta, and that subsequent cases like Pagelsdorf v. Safeco (regarding landlord duty to maintain premises) did not overrule it, as a tenant's dog is not a 'defect in the premises.' For statutory strict liability under § 174.02, liability is imposed on a dog's 'owner,' defined to include a 'harborer.' The court defines a harborer as one who affords lodging, shelter, or refuge to a dog. Merely permitting a tenant to keep a dog on leased property does not make the landlord a harborer. Finally, the third-party beneficiary claim fails because there was no contract for Fons to provide liability insurance to Garner; the ambiguous reference to 'insurance' in a letter was not a definite offer.
Dissenting - Fine, J.
Yes, the landlord should be liable under a common-law negligence theory. The landlord's duty was established because it was foreseeable that his omission—failing to enforce the 'no pets' clause in the lease after being warned the dog was dangerous—could cause harm. Unlike the landlord in Gonzales, Fons had dominion and control not over the dog itself, but over its presence on the premises through the lease agreement. Fons is not being held liable as an 'insurer' for his tenant's acts, but rather for his own negligence in failing to act when he had the contractual right and a clear warning of danger.
Analysis:
This decision reinforces the legal principle that liability for animal-caused injuries generally follows ownership and direct control, creating a significant shield for landlords in Wisconsin. It clarifies that a landlord's general duty to maintain safe premises does not extend to policing tenants' animals, which are not considered defects of the property. By narrowly defining 'harborer' for statutory strict liability purposes, the court prevents the expansion of liability to passive property owners and keeps the onus on the person who actually cares for and controls the animal. The ruling limits the avenues for recovery against landlords, forcing plaintiffs to focus on the animal's owner, who may have fewer financial resources.
