Justia.com Opinion Summary: Respondent Jill Engquist, as parent and natural guardian of minor Amber Engquist, sued Appellants, Steven and Christina Loyas, for injuries Amber sustained as a result of a dog bite that occurred at Appellants' residence. The district court entered judgment in favor of Appellants after finding that Amber provoked the dog to bite her. The court of appeals reversed on the ground that the jury instruction given by the district court misstated the meaning of provocation under Minn. Stat. 347.22. The Supreme Court affirmed, holding that because the jury could have found provocation without any consideration of the victim's knowledge of the danger, the jury instructions materially misstated the law and prejudiced Respondent. Remanded for a new trial.
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STATE OF MINNESOTA
IN SUPREME COURT
A09-1760
Court of Appeals
Dietzen, J.
Jill Engquist, as parent and natural guardian
of Amber Engquist, a minor,
Respondent,
vs.
Filed: September 21, 2011
Office of Appellate Courts
Steven Loyas, et al.,
Appellants.
________________________
Roger L. Kramer, Kramer Law LLC, Mendota Heights, Minnesota, for respondent.
LeAnne D. Miller, Rajkowski Hansmeier, Ltd., St. Cloud, Minnesota, for appellants.
________________________
SYLLABUS
1.
Under Minn. Stat. § 347.22 (2010), a dog owner’s liability for a dog attack
and resulting injuries is absolute, subject to the requirements of the statute and the
defense of provocation.
2.
Under Minn. Stat. § 347.22, “provocation” is voluntary conduct by the
plaintiff-victim that exposes the person to a risk of harm from the dog, where the
plaintiff-victim had knowledge of the risk. Thus, a plaintiff-victim who voluntarily
provokes a dog in this manner is not entitled to recover damages for the dog attack.
1
Affirmed as modified.
OPINION
DIETZEN, Justice
Respondent Jill Engquist, as parent and natural guardian of the minor, Amber
Engquist, commenced an action under Minn. Stat. § 347.22 (2010) for injuries Amber
sustained as a result of a dog bite that occurred at the residence of appellants, Steven and
Christina Loyas. The jury found that Amber provoked the dog to bite her, and the district
court entered judgment in favor of appellants. The court of appeals reversed on the
ground that the jury instruction given by the district court misstated the meaning of
provocation under the statute, and remanded for a new trial. We affirm.
On July 11, 2006, 9-year-old Amber Engquist was invited by her friend Gabrielle
to spend the night at the appellants’ residence. Appellants owned a black Labrador
retriever named Bruno. At the time of the incident, Gabrielle, her younger sister, two
cousins, and Amber were playing hide-and-seek in the basement of the Loyases’ home.
Amber had never been around Bruno before that day. During the game, Amber and
Gabrielle hid in a small crawl space beneath the basement steps. The crawl space was an
enclosed area consisting of a stairwell and at least one sidewall. Amber and Gabrielle
called Bruno into the crawl space with them. The crawl space was completely dark, and
Amber could not see Bruno or Gabrielle. While in the crawl space, Amber reached out
for Bruno and attempted to hug or put her arm around the dog. Bruno responded by
growling at her, and when Amber moved backwards, Bruno lunged at her and bit her in
the face.
2
As a result of the attack, Amber sustained injuries to her eyelid and to the area
below her chin. Amber’s medical treatment consisted of surgery to reattach the eyelid
and a series of rabies vaccinations. Her eye and her vision were not affected. She has
some minor scarring related to the dog bite, but will not need plastic surgery.
Amber sued the Loyases to recover damages for the dog attack under Minn. Stat.
§ 347.22. At trial, the Loyases argued that Amber had provoked the dog, and thus the
statutory requirements for recovery were not met. Over the parties’ objections, the
district court instructed the jury as follows:
If a dog, without provocation, attacks or injures any person who is acting
peaceably in any place where the person may lawfully be, the owner of the
dog is liable in damages to the person so attacked or injured to the full
amount of the injury sustained.
PROVOCATION
You will be asked whether Amber Engquist provoked the dog to bite her by
a deliberate, voluntary act. Provoke means to engage in any act, which
excites, stimulates, irritates, arouses, induces or enrages.
The jury determined that Amber provoked the dog, and that she sustained
$21,419.51 in damages as a result of the dog bite. Consequently, the district court
entered judgment in favor of the Loyases.
On appeal, the court of appeals determined that the jury instruction materially
misstated the law, and therefore reversed on the issue of liability and remanded for a new
trial. Engquist v. Loyas, 787 N.W.2d 220, 223-27 (Minn. App. 2010). But the court
affirmed the trial court on the issue of damages and denied respondent’s motion for
3
judgment notwithstanding the verdict. Id. at 226-27. We granted the Loyases’ petition
for review.
I.
Appellants argue that the court of appeals erred by concluding that the jury
instruction on provocation under Minn. Stat. § 347.22 materially misstated the law and
was prejudicial to respondent. Respondent contends that the court of appeals was correct
to remand for a new trial on liability.
We review a district court’s decision on jury instructions for an abuse of
discretion. Rowe v. Munye, 702 N.W.2d 729, 735 (Minn. 2005) (citing Hilligoss v.
Cargill, Inc., 649 N.W.2d 142, 147 (Minn. 2002)). Generally, the district court has broad
discretion in determining jury instructions, and we will not reverse where the instructions
taken as a whole fairly and correctly state the applicable law. Stewart v. Koenig, 783
N.W.2d 164, 166 (Minn. 2010) (quoting Hilligoss, 649 N.W.2d at 147); see also Peterson
v. BASF Corp., 711 N.W.2d 470, 484 (Minn. 2006). But a district court errs if it gives a
jury instruction that materially misstates the law or is erroneous, and results in prejudice
to the complaining party. Rowe, 702 N.W.2d at 735 (citing State v. Kuhnau, 622 N.W.2d
552, 556 (Minn. 2001)); see also Lewis v. Equitable Life Assurance Soc’y of the U.S., 389
N.W.2d 876, 885 (Minn. 1986) (citing McDonough v. Brite Lite Elec. Co., 304 N.W.2d
28, 29 (Minn. 1981)). Additionally, the interpretation of a statute is a question of law that
we review de novo. Zurich Am. Ins. Co. v. Bjelland, 710 N.W.2d 64, 68 (Minn. 2006).
The parties dispute the nature of the dog owner’s liability and the meaning of
“provocation” under the dog-attack statute, Minn. Stat. § 347.22. The statute provides:
4
If a dog, without provocation, attacks or injures any person who is acting
peaceably in any place where the person may lawfully be, the owner of the
dog is liable in damages to the person so attacked or injured to the full
amount of the injury sustained. The term “owner” includes any person
harboring or keeping a dog but the owner shall be primarily liable. The
term “dog” includes both male and female of the canine species.
Minn. Stat. § 347.22. To determine the nature of a dog owner’s liability and the meaning
of provocation1 under the statute, it is helpful to review the common law liability of a dog
owner, the history of the dog-attack statute, and the relevant case law interpreting the
statute.
The dog-attack statute was adopted in 1951, and was revised in 1980 and 1986.2
The 1980 and 1986 amendments made three minor changes to the statute: (1) deleted the
phrase “in any urban area,” (2) added the phrase “but the owner shall be primarily liable”
to the definition of “owner,” and (3) made the statute gender neutral.3 But the
amendments did not change the meaning of the word “provocation” within the statute.
1
The statute also examines whether the injured person was “acting peaceably in any
place where the person may lawfully be.” This requirement in the statute is not at issue
here.
2
Act of Apr. 12, 1951, ch. 316, § 1, 1951 Minn. Laws 1, 414 (codified at Minn.
Stat. § 347.22 (1952)); Act of Mar. 3, 1980, ch. 347, § 1, 1980 Minn. Laws 27, 27; Act of
Mar. 25, 1986, ch. 444, § 1, 1986 Minn. Laws 775, 776.
3
The cumulative revisions to the statute are as follows:
If a dog, without provocation, attacks or injures any person who is acting
peaceably conducting himself in any place where he the person may
lawfully be in any urban area, the owner of the dog is liable in damages to
the person so attacked or injured to the full amount of the injury sustained.
The term “owner” includes any person harboring or keeping a dog but the
owner shall be primarily liable. The term “dog” includes both male and
female of the canine species.
5
The statute, however, does not explicitly describe the meaning and availability of the
defense of provocation under the statute.
Minnesota recognizes a common law cause of action for an attack by an animal.
See Fake v. Addicks, 45 Minn. 37, 38, 47 N.W. 450, 451 (1890). This case is relevant
because it has been cited by our court to explain the nature of a dog owner’s liability and
the defense of provocation under section 347.22. In Fake, the injured person brought a
claim for common law liability against the dog owner for the dog’s attack. 45 Minn. at
37, 47 N.W. at 450. We concluded the evidence was sufficient to establish both that the
dog was dangerous and that the vicious nature of the dog was known to the owner. Id. at
37-38, 47 N.W. at 451. Notably, we described the nature of this common law liability:
“The gravamen of the action is the neglect of the owner of an animal, known by him to
be vicious and liable to attack and injure people, to restrain him so as to prevent the risk
of damage . . . .” Id. at 38, 47 N.W. at 451. Also, we discussed the type of conduct by a
plaintiff-victim that would avoid liability by the dog owner. Specifically, we quoted with
approval from Muller v. McKesson, 73 N.Y. 195, 201 (1878) that:
If a person, with full knowledge of the evil propensities of an animal
wantonly excites him or voluntarily and unnecessarily puts himself in the
way of such an animal, he would be adjudged to have brought the injury
upon himself, and ought not to be entitled to recover. In such a case it
cannot be said, in a legal sense, that the keeping of the animal, which is the
gravamen of the offence, produced the injury . . . .
Fake, 45 Minn. at 39-40, 47 N.W. at 452.
Previously, we have interpreted the dog-attack statute in three cases that are
relevant to this dispute: Lavalle v. Kaupp, 240 Minn. 360, 61 N.W.2d 228 (1953); Seim
6
v. Garavalia, 306 N.W.2d 806 (Minn. 1981); Bailey v. Morris, 323 N.W.2d 785 (Minn.
1982).
Our previous interpretation of a statute guides us in determining its
meaning. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 172
(Minn. 2010) (interpreting the statutory phrase “without notice” consistent with prior case
law); see also Sandal v. Tallman Oil Co., 298 Minn. 264, 268, 214 N.W.2d 691, 693
(1974); Zochrison v. Redemption Gold Corp., 200 Minn. 383, 390, 274 N.W. 536, 540
(1937); Allen v. Indep. Sch. Dist. No. 17, 173 Minn. 5, 6-7, 216 N.W. 533, 534 (1927).
Thus, we next examine those three relevant cases.
In Lavalle, we considered whether liability under section 347.22 would survive the
death of the defendant. 240 Minn. at 361, 61 N.W.2d at 229. Under Minn. Stat. § 573.01
(1949), an action based on personal injuries would survive the death of the defendant
only if the injuries were the result of the negligence of the defendant. We rejected the
plaintiff’s argument that a section 347.22 claim implicates negligence per se and
concluded that the statute establishes “strict liability in damages, irrespective of any
question of negligence and without the proof of scienter as at common law.” Lavalle,
240 Minn. at 363, 61 N.W.2d at 230. Thus, unlike the common law liability of the dog
owner, liability under the statute does not require proof of scienter, that is, the owner’s
knowledge that the dog was dangerous.4 Instead, the court equated the statutory liability
4
As illustrative of the common law rules, the court cited, inter alia, Olson v.
Pederson, 206 Minn. 415, 288 N.W. 856 (1939). Lavalle, 240 Minn. at 363 n.5, 61
N.W.2d 230 n.4. In Olson, the court stated the general common law rule as: “[T]he
owner is liable for harm done by his dog, which he has reason to know has dangerous
(Footnote continued on next page.)
7
created by the dog-attack statute with the liability at common law for the keeper of a wild
animal, for which there is no requirement to prove the owner’s knowledge of
dangerousness.5 We stated: “The statute leaves the dog owner in the same position
which the common law left the keeper of a wild animal; namely, with the strict liability
of an insurer.” Lavalle, 240 Minn. at 363, 61 N.W.2d at 230.
Similarly, in Seim, we stated that the dog-attack statute put the dog owner “ ‘in the
same position which the common law left the keeper of a wild animal.’ ” Seim, 306
N.W.2d at 811 (quoting Lavalle, 240 Minn. at 363, 61 N.W.2d at 230). The issue in Seim
was whether the trial court erred in submitting the issue of the dog-attack victim’s
contributory negligence to the jury, pursuant to Minnesota’s enactment of a comparative
fault regime. Seim, 306 N.W.2d at 808-09. The meaning of provocation was not at issue
on appeal. The trial court had directed a verdict in favor of the plaintiff-victim on the
issue of provocation, and no appeal was brought on that issue. Id. at 809 n.3. We found
that the Legislature had the power “to carve out or preserve exceptions to the
[comparative fault] statute” and that section 347.22 was such an exception. 306 N.W.2d
at 812. Thus, we concluded that liability of the dog owner under section 347.22 is
(Footnote continued from previous page.)
propensities abnormal to its kind to cause harm to others . . . .” 206 Minn. at 416, 288
N.W. at 857 (citing Fake, 45 Minn. at 37, 47 N.W. at 450).
5
Common law liability of the keeper of a wild animal is similar to the common law
liability of the owner of a domestic animal that is known by the owner to be dangerous.
Compare Restatement (Second) of Torts § 507 (1977), with Restatement (Second) of
Torts § 509 (1977). The difference between the two forms of liability is, as noted, that in
order to establish liability for harm done by a domestic animal, there must be proof that
the owner knew or had reason to know of the animal’s dangerous propensities.
8
absolute, and is not based on the negligence of the dog owner, subject only to the
requirements of the statute and the defense of provocation. 306 N.W.2d at 812. In Seim,
we held that the absolute liability created by the dog-attack statute cannot be reduced
based on the ordinary negligence of the plaintiff-victim. See id. In so concluding, we
expressly rejected all other types of liability, including strict liability, which allows
consideration of defenses not provided for in the statute. Id. at 810-12.
We addressed the defense of provocation under the dog-attack statute most
directly in Bailey. The plaintiff-victim argued that, as a matter of law, merely petting or
playing with a dog cannot be provocation because provocation must be intentional.
Bailey, 323 N.W.2d at 787. Initially, we noted that other jurisdictions with similar
statutes have construed provocation to include unintentional acts. Id. We concluded that
“provocation must be voluntary, thus inviting or inducing the injury.”
Id.
Our
conclusion rested on our reasoning in Fake that when “a person voluntarily and
unnecessarily provokes a vicious animal, and thus invites or induces the injury, knowing
the probable consequences, he is not entitled to recover.” Fake, 45 Minn. at 39, 47 N.W.
at 451, discussed in Bailey, 323 N.W.2d at 787. Pursuant to Bailey, knowledge of the
danger is an element of the “voluntariness” necessary for the plaintiff’s conduct to
constitute provocation under the statute and bar recovery. Consequently, provocation
focuses on the plaintiff-victim’s conduct and requires both the plaintiff’s direct
knowledge of the danger and that the plaintiff-victim voluntarily exposed herself to that
danger.
9
The Legislature has not amended Minn. Stat. § 347.22 in response to our decision
in Bailey that the statute requires that the plaintiff-victim have knowledge of the danger
and voluntarily expose herself to that danger in order for the provocation element of the
statute to be satisfied.
Because the Legislature has not acted, we assume that the
Legislature has acquiesced in our interpretation. See State, Dep’t of Pub. Safety v. Ogg,
310 Minn. 433, 436, 246 N.W.2d 560, 562 (1976) (determining that the failure to amend
a statute following interpretation of the statute by this court despite “several” intervening
legislative sessions suggests the Legislature has acquiesced in the court’s decision); see
also Minn. Stat. § 645.17(4) (2010) (“[W]hen a court of last resort has construed the
language of a law, the legislature in subsequent laws on the same subject matter intends
the same construction to be placed upon such language.”). Accordingly, we apply the
provocation standard adopted in Bailey.
Based upon our prior construction of Minn. Stat. § 347.22, we conclude that a dog
owner’s liability under the statute for a dog attack on a plaintiff-victim is absolute,
subject to the requirements of the statute and the defense of provocation. Absolute
liability under the statute does not require negligence on the part of the dog owner, and is
not barred by the contributory negligence of the plaintiff-victim. But a plaintiff-victim is
not entitled to recover for a dog attack that is the result of provocation within the meaning
of the statute. Provocation under the statute has a narrower meaning than contributory
negligence. Specifically, a plaintiff-victim who voluntarily and unnecessarily provokes a
dog in a manner that invites a dog attack is not entitled to recover. It is not necessary that
the plaintiff-victim intend to provoke the dog. Rather, provocation involves voluntary
10
conduct that exposes the person to a risk of harm from the dog, where the person had
knowledge of the risk at the time of the incident. The question of whether a dog was
provoked within the meaning of the statute in a given case is primarily a question of fact
for the jury.
II.
We next examine whether the jury instruction given by the district court materially
misstated the law regarding the nature of the dog owner’s liability and the application of
the provocation defense. The jury instruction consisted of two parts: the first part set
forth the language of the statute verbatim and the second part attempted to describe the
defense of provocation. The second part stated: “You will be asked whether Amber
Engquist provoked the dog to bite her by a deliberate, voluntary act. Provoke means to
engage in any act, which excites, stimulates, arouses, induces or enrages.”
We conclude that the jury instruction did not adequately explain the dog owner’s
liability and materially misstated the meaning of provocation under the statute. The jury
should have been instructed that the dog owner’s liability is absolute, subject to the
statutory defense of provocation. Moreover, the instruction erroneously described the
meaning of provocation. For example, under the district court’s instruction, a jury could
find provocation where a person is bitten as a result of innocently petting a dog who,
unknown to the victim, is by nature or as a result of some painful condition inclined to
attack anyone who touches the dog. Provocation could even be found if the dog had
never bitten anyone in the past and acted entirely uncharacteristically in attacking the
plaintiff. Because the jury could have found provocation without any consideration of
11
the victim’s knowledge of the danger, much less the victim’s voluntary exposure to the
danger, we conclude that the jury instructions materially misstated the law and prejudiced
the respondent.
Finally, we review whether the court of appeals’ proposed jury instruction on
provocation accurately states the law. The proposed jury instruction states:
A person provokes a dog when, by voluntary conduct, and not by
inadvertence, the person invites or induces injury. Mere physical contact
with a dog, or conduct that results in stimulating a dog, does not constitute
provocation unless the danger of injury is apparent when the person acts to
invite or induce injury.
Engquist, 787 N.W.2d at 225-26. We conclude that the proposed jury instruction does
not accurately state the law for several reasons. First, the proposed jury instruction fails
to state that the dog owner’s liability under the statute is absolute, subject to the statutory
defense of provocation.
Also, the proposed instruction does not fully explain the
meaning of provocation under the statute. Specifically, the proposed instruction fails to
indicate that a plaintiff-victim who voluntarily provokes a dog in a manner that invites a
dog attack is not entitled to recover. It is not necessary that the plaintiff-victim intended
to provoke the dog. Rather, provocation involves voluntary conduct by the plaintiffvictim that exposes the plaintiff-victim to a risk of harm from the dog of which the
plaintiff-victim had knowledge at the time of the incident.
Accordingly, we affirm the decision of the court of appeals to remand for a new
trial. But we reject the court of appeals’ proposed jury instruction for the reasons stated
herein.
Affirmed as modified.
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