Alvin v Simpson – 195 Mich.App. 418 (1992) Michigan Dog Attack Case
Child was bitten by neighbors’ dog and plaintiffs sued neighbors, alleging causes of action under dog bite statute. Neighbors filed motion for summary disposition, and the Circuit Court, Wayne County, James R. Chylinksi, J., granted summary disposition for neighbors. Plaintiffs appealed. The Court of Appeals held that child who entered onto property without permission was “trespasser,” rather than “implied licensee,” and was not entitled to protection of dog bite statute.
Although dog bite statute does not specifically provide for implied licensees, plain meaning and application of statute requires plaintiffs to prove that one who was bitten was either an invitee or licensee, express or implied, to fall within purview of protection created by this statute; permission of licensee to enter onto land may be implied if owner acquiesces in known, customary use of property by public. M.C.L.A. § 287.351.
Child bitten by neighbor’s dog in neighbor’s yard was “trespasser” as matter of law and, thus, not entitled to protection created by dog bite statute where neighbor never gave child permission to enter yard, and permission could not be implied because child knew he did not have permission to enter property. M.C.L.A. § 287.351.
In this dog-bite case, plaintiffs appeal as of right a circuit court order granting defendants’ motion for summary disposition of plaintiffs’ strict liability claim. We affirm.
Plaintiffs’ complaint alleged that ten-year-old Bradley Alvin was lawfully on defendants’ premises when he was bitten by defendants’ dog. Bradley was playing with friends at the Hoilman residence, which is next door to defendants’ residence. Defendants’ house had a back yard that was enclosed by a fence. At the request of one of his playmates, who did not live at the Hoilman residence, Bradley climbed the fence and entered defendants’ back yard in order to retrieve a ball. As Bradley climbed to the top of the fence on his way back to the Hoilman residence, defendants’ dog bit him on the leg.
Plaintiffs sued defendants, alleging causes of action under Michigan’s dog-bite statute, M.C.L. § 287.351; M.S.A. § 12.544, and Michigan’s leash law, M.C.L. § 287.262; M.S.A. § 12.512. The latter claim was dismissed by stipulation of the parties. Defendants filed a motion for summary disposition under MCR 2.116(C)(10), claiming that there was no question of material fact regarding Bradley’s status as a trespasser at the time he was bitten. Plaintiffs argued that Bradley was an implied licensee. The trial court concluded as a matter of law that Bradley was a trespasser and granted defendants’ motion.
The statute involved, M.C.L. § 287.351; M.S.A. § 12.544, as amended by 1988 P.A. 142, provides:
(1) If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.
(2) A person is lawfully on the private property of the owner of the dog within the meaning of this act if the person is on the owner’s property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or if the person is on the owner’s property as an invitee or licensee of the person lawfully in possession of the property unless said person has gained lawful entry upon the premises for the purpose of an unlawful or criminal act.
Although the statute does not specifically make provisions for “implied licensees,” the plain meaning and application of the statute requires plaintiffs to prove that Bradley was either an invitee or a licensee, expressed or implied, to fall within the purview of protection created by this statute. Cox v. Hayes, 34 Mich.App. 527, 531, 192 N.W.2d 68 (1971). A licensee has been defined as “a person who enters on or uses another’s premises with the express or implied permission of the owner or person in control thereof.” Permission may be implied where the owner acquiesces in the known, customary use of property by the public. Thone v. Nicholson, 84 Mich.App. 538, 544, 269 N.W.2d 665 (1978).
Plaintiffs offered no evidence to rebut William Simpson’s claim that he never gave Bradley permission to enter his yard. Under the circumstances herein, permission cannot be implied. To the contrary, it is clear from the statements in Bradley’s deposition that he knew that he was trespassing on defendants’ property and did not have permission from defendants, either express or implied, to enter their property. Barbara Hoilman’s averments in her affidavit that her children had permission on prior occasions to enter defendants’ property to retrieve balls, and that in her opinion such acts do not constitute a trespass, do not create a factual question regarding Bradley.
Giving the benefit of reasonable doubt to plaintiffs, we conclude that no record could be developed that would leave open an issue upon which reasonable minds could differ. Farm Bureau Mut. Ins. Co. v. Stark, 437 Mich. 175, 184-185, 468 N.W.2d 498 (1991). Consequently, the trial court properly granted summary disposition for defendants.
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