LILLIAN HILL V DONALD HOIG

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STATE OF MICHIGAN COURT OF APPEALS LILLIAN HILL, FOR PUBLICATION September 23, 2003 9:10 a.m. Plaintiff-Appellee, v No. 240553 Sanilac Circuit Court LC No. 00-27591-NO DONALD HOIG and MARGE HOIG, Defendants-Appellants. Updated Copy November 21, 2003 Before: Whitbeck, C.J., and O'Connell and Cooper, JJ. O'CONNELL, J. (dissenting). I respectfully dissent. In Grummel v Decker, 294 Mich 71, 77; 292 NW 562 (1940), our Supreme Court expressly held that provocation was a complete defense to a common-law dogbite claim. Our Supreme Court has not overturned Grummel. The majority opinion essentially concludes that our state's adoption of comparative fault extinguished the defense of provocation in common-law dog-bite cases. But this analysis overlooks the fact that contributory negligence and provocation are distinct defenses. VonBehren v Bradley, 266 Ill App 3d 446, 449-450; 640 NE2d 664 (1994). While contributory negligence eliminates a plaintiff 's claim because public policy demands that a plaintiff reasonably act to protect his own safety, provocation eliminates a dog owner's duty to prevent the dog from doing damage. Id. at 448-450. So the provocation defense resembles the "open and obvious danger" doctrine and other duty-based defenses that remain unaltered by the adoption of comparative fault. Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 403; 491 NW2d 208 (1992); see also O'Sullivan v Shaw, 431 Mass 201, 206; 726 NE2d 951 (2000) (listing the authorities and majority jurisdictions that find accordingly). I again note that our Supreme Court established the defense, so we should resolve any doubt about its continued viability in favor of deference. Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d 544 (1993). In my opinion, the trial court erred when it failed to determine initially whether the defense eliminated the common-law claim and later refused to instruct the jury on the defense's applicability. I would vacate the judgment and remand for a new trial on plaintiff 's common-law claim. /s/ Peter D. O'Connell -1-

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