Dog bite statute; “Provocation”; MCL 287.351(1); Distinguishing Brans v Extrom; Koivisto v Davis

In this action under Michigan’s dog-bite statute, the court held that the trial court erred when it determined that defendants were entitled to summary disposition because their dog (Buddy) was “provoked” by their electric fence. Rather, because there was no dispute that the victim of the bite, a five-year-old (L), did nothing to provoke Buddy, plaintiff-conservator was entitled to summary disposition on the issue of liability pursuant to MCR 2.116(I)(2). Thus, the court reversed the grant of summary disposition for defendants and remanded for entry of an order granting plaintiff partial summary disposition on the issue of liability. Plaintiff argued that “the term “provocation” in MCL 287.351(1) is limited to provocation of a dog by the victim of the dog bite, and not outside sources of provocation like defendants’ electric fence.” The court agreed. It was undisputed that L did nothing to provoke Buddy. But the trial court still allowed defendants to “assert a provocation defense because ‘the dog was otherwise provoked as contemplated in the statute.’” This was inconsistent with the court’s interpretation of the statute in Koivisto. Defendants argued that the interpretation in Koivisto was contrary to the plain language of the statute. They cited Brans, which “concerned the victim’s unintentional act—not the act of another force,” as in this case. Thus, Brans was factually distinguishable. Further, while “the definition of ‘provocation’ as stated in Brans, . . . does not specify that plaintiff must be the actor who incites another to do a particular act,” the court in Koivisto “expressly limited ‘provocation’ to refer to the victim’s conduct[.]” Defendants also argued that “the Legislature could have specified that ‘provocation’ only applies to plaintiff’s conduct,” and it did not do so in the dog-bite statute, while “the dangerous animal statute specifies that provocation must be by the person who was bitten by the animal.” However, the court did “not find this to be persuasive textual evidence of the Legislature’s intent because the Legislature ‘legislates by legislating, not by doing nothing, not by keeping silent.’” Defendants further argued that plaintiff’s interpretation of MCL 287.351(1) was “contrary to the purpose of the statute, because it would allow liability even if a dog was actually provoked by another person, as long as that person was not the victim.” However, those were not the facts in this case and the court declined to opine on such a scenario.