Wisconsin Supreme Court interprets "owner" narrowly for "dog bite" liability and homeowner's insurance coverageJanuary 13, 2015
Wisconsin’s "dog bite" statute, Wis. Stat. § 174.02, imposes strict liability on dog owners for all injuries caused by their dogs and defines an "owner" as "any person who owns, harbors or keeps a dog." When one person’s dog is housed on another person’s property, does the property owner become an "owner" of the dog for purposes of liability under this statute? That’s the question the Wisconsin Supreme Court recently addressed in Augsburger v. Homestead Mutual Insurance Company. The Court decided that merely owning the property on which a dog resides is insufficient, by itself, to establish that an individual is an owner of a dog under § 174.02. And hence, the property owner’s insurance does not cover the injuries caused by the dog simply because the insured owns the property. A property owner only becomes a "harborer" (and thus an owner) under the statute—liable for injuries caused by a dog—when it exercises some requisite level of control over the property, which is a determination that depends on the totality of the circumstances.
The facts of the case were generally undisputed. George Kontos purchased a property in Larsen, Wisconsin, with the intention that his daughter, Janet Veith, and her family would move from Colorado and live there. Kontos purchased insurance for the property through Homestead Mutual. Kontos’ intentions in purchasing the property were noble: the Veiths were having some financial difficulties at the time, the property allowed them to live closer to her parents (particularly, her mother, who was ill), and the property was sufficiently large to allow the Veiths to keep their horses and dogs. Kontos never lived on the property, and the Veiths inhabited it without a formal lease and without any expectation for paying rent.
At the time Kontos bought the property, the Veiths had two dogs. After they moved there, they rescued a third dog, who then had four puppies, of which the Veiths kept three. Kontos was not fond of these six dogs, but he did not tell his daughter to remove them (though he clearly could have). He only visited the property sporadically, and he had no control over the dogs’ health or well-being.
In 2008, Veith invited her friend, Julie Augsburger, to the property. Augsburger had visited the property before, and she knew that the Veiths kept dogs there.When Augsburger arrived, Veith’s daughter told her that Veith was in the barn. As Augsburger made her way to the barn, according to her complaint, she was viciously attacked by four of the dogs. The dogs allegedly tore off her pants, bit her at least 11 times, and she suffered serious lacerations on both legs, some of which required surgical closure.
Augsburger then sued the Veiths, Kontos, and Homestead Mutual (Kontos’ homeowner’s insurer) under § 174.02. The parties agreed that Kontos did not "own" or "keep" the dogs, and thus the sole question at issue for his liability under § 174.02 was whether he had "harbored" the dogs. The circuit court determined, on summary judgment, that Kontos had harbored the dogs by knowingly providing lodging and shelter to the dogs on his property and that he was, therefore, liable. The Court of Appeals affirmed.
The Supreme Court reversed, in an opinion authored by Justice Bradley. The Court held that "harbor" means to provide lodging, shelter, or refuge to a dog and that whether a property owner is a "harborer" depends on a "totality of the circumstances" factual determination. In assessing the totality of the circumstances, two of the key factors are (1) whether the property owner lives on the premises with the dog, and (2) whether the owner of the dog is using the property more like a houseguest of the property owner (which is more likely to constitute harboring) or more like a tenant of the property owner (which is less likely to constitute harboring). Under no circumstances, however, is simply owning the land sufficient, by itself, to turn the property owner into a "harborer" of any dogs residing on the property. Harboring requires more than mere ownership of the land.
Having clarified the legal definition of "harbor", the Court went on to hold that, under the totality of the circumstances, Kontos did not harbor the Veiths’ dogs. The Court held that, even though there was no rental agreement or rent due, the Veiths were nevertheless more akin to tenants than they were to houseguests because Kontos did not live there, prescribe particular rules for the Veiths to follow, or frequently visit the property. Essentially, Kontos provided the property to the Veiths to live there as if it was their own, and it was thus the Veiths, not Kontos, who harbored the dogs. Kontos was therefore not liable to Ausberger, and Homestead Mutual consequently had no indemnification obligations.
Justice Prosser dissented. He generally agreed with the majority’s legal analysis, but he disagreed with the application of that law to the facts of this case. In his view, Kontos had asked the Veiths to move to the area, helped to pay for the move, and purchased the property specifically for them—all with the knowledge that the Veiths would be housing their dogs there. Justice Prosser thus would have affirmed the court of appeals on the ground that Kontos harbored the dogs.
*Co-author Mark W. Hancock is licensed to practice in Illinois; not yet licensed to practice in Wisconsin. (1/13/2015)