Dec. 30, 2009 – A woman who allowed a man and his dogs to live in her home is liable for the injuries the animals caused a neighbor, the Wisconsin Supreme Court held yesterday.
In Pawlowski v. Amer. Family Mut. Ins. Co., 2009 WI 105, the justices unanimously ruled that Nancy Seefeldt’s actions came within the meaning of “harboring” a dog as defined by Wis. Stat. sec. 174.02. The court held that “harboring” is to shelter or give refuge to a dog, adopting the definition used in Pattermann v. Pattermann, 173 Wis. 2d 143 (Ct. App. 1992).
Seefeldt had argued that she should not be liable because the dogs were under the immediate control of their legal owner at the time of the attack. But the court held that the “harboring” status does not vary with such minute-by-minute changes of immediate control over the animal.
Houseguest with dogs
Seefeldt agreed to let Walter Waterman, an acquaintance of her daughter, live in her home when he was unemployed and needed a place to stay where he could keep his two dogs. Waterman never paid any rent; they had an informal arrangement that Waterman would help with some home repairs and housekeeping.
One afternoon, Waterman’s unleashed dogs charged out of the house and headed toward Colleen Pawlowski, a neighbor. Waterman chased the dogs, but he could not get them under control before one had bitten at Pawlowski’s left shoulder, left thigh, and calf. The dog tore Pawlowski’s coat, knocked her down, and punctured her calf.
Seefeldt was at home, but did not see the attack and did not learn of it until a police officer came to the house to investigate later that day. One to two weeks later, Seefeldt asked Waterman and his dogs to leave.
Waterman was not a named defendant in the lawsuit and was not located for purposes of discovery and litigation. The circuit court granted summary judgment for Seefeldt, holding that she was not a “keeper” of the dog at the time of the attack within the meaning of the statute. The circuit court also held that judicial public policy precluded liability. The Wisconsin Court of Appeals reversed, finding Seefeldt was a “keeper.”
Statutory interpretation
In an opinion authored by Chief Justice Shirley Abrahamson, the court observed that the distinction between “keeping” and “harboring” a dog “has not been crisp over the years either in the dog injury statutes or in the case law,” in which early cases appeared to use the terms interchangeably.
However, the court found that Pattermann set forth a definition of “keeping” as “exercising some measure of care, custody or control over the dog” and “harboring” to mean sheltering a dog, lacking the proprietary aspect of “keeping.” Significantly, the court said that “harboring” is more than a “meal of mercy to a stray dog or the casual presence of a dog on someone’s premises.” Accordingly, the court said that Seefeldt “harbored” the dog because she allowed the animal to live in her home for several months, providing it shelter and lodging.
Moment-to-moment control of a dog is not required in order to be a keeper, the court said, citing Koetting v. Conroy, 223 Wis. 550 (1936). Under Koetting, one can extinguish the keeper status by affirmatively acting to end the relationship with the animal, such as refusing to permit the dog to be kept on the premises and compelling the owner to keep it elsewhere.
“Here, Ms. Seefeldt took neither ‘affirmative’ nor ‘explicit’ steps to terminate her harboring of the dog before the dog bite incident,” the court wrote. “Indeed, the dog continued to live in her home for some time after the dog bite incident.”
