Aug. 30, 2013 – A person can still “harbor” dogs, and be strictly liable for dog attacks, even if that person does not reside where the dogs are kept, an appeals court has ruled in a case that chills a parent’s decision to purchase a home for dog-owning children.
George Kontos purchased a second home and let his daughter live there rent-free with her family and the family dogs. Kontos did not live there, and did not own the dogs, but he’s on the hook for a dog attack at the daughter’s home, a court has ruled.
Under Wis. Stat. section 174.02, the “owner” of a dog is strictly liable for the full amount of damages when the dog causes injury to someone. An owner is “any person who owns, harbors or keeps a dog,” under Wis. Stat. section 174.001(5).
In Augsburger v. Kontos, 2012AP641 (Aug. 28, 2013), a three-judge panel for the District II Court of Appeals court ruled that Kontos was a “harborer” because he provided shelter and lodging for the dogs and had the power to remove them.
Residence Does Not Matter
Kontos had purchased a home in Larsen, west of Appleton, to let his daughter’s family live there and as a retirement home in the future. Kontos lived several miles away.
The Veiths, his daughter’s family, moved in with two dogs and acquired several more. Kontos was aware of the dog situation when they attacked a family friend, Julie Augsburger, in 2008. Augsburger sued the Veiths and Kontos, and their insurers.
Kontos argued that he could not be liable for Augsburger’s injuries because he did not exercise dominion or control over the dogs, and he did not live at the Veith home. But the appeals court explained that Kontos was a “harborer,” under prior case law.
That is, the Wisconsin Supreme Court previously ruled that harboring means “to afford lodging, to shelter or to give refuge to a dog.” Pawlowski v. American Family Mut. Ins. Co., 2009 WI 105, 322 Wis. 2d 21, 777 N.W.2d 67. Pawlowski involved a mother who let her daughter’s friend keep his dogs at the home. One escaped, and bit someone.
Unlike Pawlowski, Kontos was not allowing the dogs to stay in his home, but he was still a “harborer” because he owned the home where the dogs were staying, the panel ruled.
“At the time of the alleged attack, Kontos had knowingly permitted the dogs to reside at the property for many months,” wrote Judge Mark Gundrum.
“Because Kontos unquestionably provided shelter and lodging for the dogs just as surely as he did for the Veiths, he harbored the dogs and was a statutory owner of them.”
The ruling follows a recent decision by the Minnesota Supreme Court, the panel noted, in which the court concluded that liability as a “harborer” did not hinge on whether a person giving shelter and lodging to dogs resides at the same place.
The appeals panel also rejected Kontos’ public policy arguments, including his argument that an adverse ruling would have no stopping point.
“Holding strictly liable a property owner who knowingly affords a sizeable number of dogs shelter and lodging on his or her property for multiple months, even though the owner is not personally residing at the property, does not create open-ended liability,” wrote Judge Gundrum, noting that in general, landlords are not liable for dog attacks.
Kontos had conceded that he was not a landlord, because he let the Veith family live there for free, “out of his love and compassion as a father.” The appeals court suggested the outcome might be different if Kontos charged rent.
