Court of appeals declines to extend dog bite liability to landlord

By Deborah Spanic, legal writer

June 20, 2011 – In a negligence action arising from a child’s serious injuries due to a dog bite, the Disctrict IV Wisconsin Court of Appeals has declined to extend liability to the landlord of the property in which the dog resided.

In Ladewig v. Tremmel, et. al (2010AP1925, June 16, 2011), the court of appeals confirmed the general liability rule in Wisconsin that as a matter of public policy, a landlord is not liable for injuries caused by a tenant’s dog, unless the landlord is an owner or keeper of that dog. 

The Ladewigs were seeking an exception to this rule, contending that the landlords, Larry and Janice Winters, voluntarily assumed a duty to third parties through a lease provision that prohibited the tenants from keeping “vicious dogs” on the leased property. See Id. ¶ 2.

The facts and background

Two tenants leased a single-family home from the Winters. The tenants invited their seven-year-old neighbor to the property, where he was attacked by a pit bull owned by the tenants. The Ladewigs sued the landlords for negligence for failing to exercise reasonable care in enforcing the lease provision against the tenants that prohibited vicious dogs, which included pit bulls. See Id. ¶¶ 4-5.

In the circuit court, the landlords moved for summary judgment, arguing that they were not liable for the acts of their tenants’ dog, because they were not “owners or keepers” of the pit pull. The court granted summary judgment in favor of the landlords, and the Ladewigs appeal. See Id. ¶ 6.

The analysis and decision

The legal issue the court addressed is whether the common-law rule set forth in Smaxwell v. Bayard (2004 WI 101, 274 Wis. 2d 278, 682 N.W.2d 923, July 30, 2003), which holds that public policy precludes landlord liability, does not apply when a landlord fails to enforce a lease provision prohibiting a tenant from keeping a vicious dog. See Ladewig, ¶ 8.

To establish a negligence claim, the plaintiff must first prove that the facts meet the four elements of negligence, which are: (1) the existence of a duty of care on the part of the landlords; (2) a breach of that duty of care; (3) a causal connection between the landlords’ breach of duty of care and the injury; and (4) actual loss or damage resulting from the injury. Then, even if the plaintiff establishes a negligence claim, liability for negligence may be precluded as a matter of public policy. See Id. ¶¶ 9, 11.

In this case, the Ladewigs focused on the first element of negligence, the existence of a duty. In Wisconsin, the general rule is that “all persons have a duty of reasonable care to refrain from those acts that unreasonably threaten the safety of others.” However, in citing Smaxwell, the court noted that even if all the elements of a claim for negligence are proved, the court may preclude liability based on public policy factors, and the public policy analysis is separate from determining whether a duty exists. See Id. ¶¶ 11-12.

The general rule in Wisconsin prohibits landlord liability for injuries caused by a tenant’s dog on public policy grounds. It’s only when the landlord acts or fails to act while in the separate status as an “owner or keeper” of the tenant’s dog that liability may arise. See Id. ¶ 14. Liability for landlords under the common law is limited to those who “have dominion or exercise control over an animal.” The reasoning for this rule is that “there is no sensible or just stopping point,” and that permitting liability would present fact finders with the complex task of determining the level of awareness landlords had, or should have had, regarding the hazards presented by their tenants’ dogs. See Id. ¶¶ 17-19.

The Ladewigs, in this case, relied on Restatement (Second) of Torts § 324A to argue that “liability may be imposed on a person who has no duty to act when that person gratuitously undertakes to act, then acts negligently.” The court was not swayed by this argument, instead noting that, “Even assuming without deciding that the landlords assumed a duty, creating liability under § 324A, the public policy analysis of Smaxwell applies to preclude liability.” See Id. ¶¶ 23-24.

Effectively, there was no need for the court to address theories of negligence, because the public policy precluding liability of landlords in this context renders those theories irrelevant. See Id. ¶ 26. The Ladewigs argued that the enforcement of a lease provision is enough of a factual difference to allow for a deviation from the public policy outlined in Smaxwell, but the court here concluded that the ability of a landlord to enforce a lease provision is a type of control a landlord exercises over the premises, not over a tenant’s dog on the premises (emphasis in original). See Id. ¶ 29.

As a result, the court affirmed the summary judgment on behalf of the landlords, and concluded that the landlords’ ability to enforce a lease provision does not qualify them as owners or keepers of their tenants’ dog. Therefore, the landlords are not liable as a matter of law for the injuries caused by the dog. See Id. ¶ 43.