Dog bite; MCL 287.351; Implied license to approach a house; Kelsey v Lint; People v Frederick; “Provocation”; Brans v Extrom

Concluding a genuine issue of material fact existed as to “whether plaintiff was a licensee when she was bitten by defendant’s dog,” the court held that the trial court erred in deciding the issue as a matter of law. It also held that there was a genuine issue of material fact as to whether plaintiff provoked the dog. Thus, it reversed summary disposition for defendant and remanded. The parties are neighbors. The court concluded a reasonable juror could determine “that, when the evidence is viewed in the light most favorable to plaintiff, her conduct could be viewed as akin to that of a solicitor who sees someone outside in front of a house and stops to talk to them. Plaintiff, while driving by defendant’s house, saw [him] in his garage, so she pulled into his driveway intending to ask him a question. When [she] parked, she saw that [he] had already gone into his backyard, so (by plaintiff’s telling) she went to the front of her car and—standing in defendant’s driveway—yelled ‘hello’ to try to get [his] attention. While one could reasonably view this conduct as intrusive, we think that, considering the conduct in the light most favorable to plaintiff, there is a genuine issue of material fact whether [she] exceeded the scope of the implied license to approach a house and try to make contact with its occupants (which is typically achieved by approaching the front door and knocking).” The court clarified that it was “not concluding that, if the jury believes plaintiff’s version of events, then it must conclude that she was a licensee. To the contrary, even if a jury credits [her] testimony, it could still conclude that she exceeded the scope of ‘the implied license to approach a house.’” Rather, it held “that a jury could reasonably conclude the opposite as well.” Next, it noted that, for “an act to constitute provocation, ‘there must be some action directed toward the animal or, if not, the animal’s response must be proportional to the victim’s action.’” Viewing the evidence in the light most favorable to plaintiff, her shout to defendant got the attention of his dog, which approached her from the “backyard. When the dog got close, plaintiff talked to the dog and stuck out the back of her hand for the dog to sniff. The dog then bit [her]. On these facts, jurors could reasonably conclude that plaintiff’s actions did not amount to provocation.”