Julie A. Augsburger v. Homestead Mutual Insurance Company ( 2014 )

2014 WI 133
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP641
COMPLETE TITLE: Julie A. Augsburger,
Plaintiff-Respondent,
v.
Homestead Mutual Insurance Company and George
Kontos,
Defendants-Appellants-Petitioners,
ABC Insurance Company, Janet C. Veith, Edward
Veith and
Convergys Corporation,
Defendants.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 350 Wis. 2d 486, 838 N.W.2d 88)
(Ct. App. 2013 – Unpublished)
PDC No.: 2013 WI App 106
OPINION FILED: December 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 4, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Gary R. Sharpe
JUSTICES:
CONCURRED:
DISSENTED: PROSSER, J., dissents. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants-petitioners, there were
briefs by Robert N. Duimstra, Jarrod J. Papendorf, Kurt F.
Ellison, and Menn Law Firm, Ltd., Appleton. Oral argument by
Jarrod J. Papendorf.
For the plaintiff-respondent, the cause was argued by Susan
R. Tyndall, with whom on the briefs was Joseph M. Troy and
Habush, Habush & Rottier S.C., Appleton and Waukesha.
An amicus curiae brief was filed by Timothy M. Barber and
Axley Brynelson LLP, Madison; and Monte E. Weiss and Weiss Law
Office S.C., Mequon, on behalf of Wisconsin Defense Counsel.
An amicus curiae brief was filed by William C. Gleisner III
and Law Offices of William Gleisner, Hartland, on behalf of
Wisconsin Association for Justice.
2
2014 WI 133
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP641
(L.C. No. 10CV844)
STATE OF WISCONSIN : IN SUPREME COURT
Julie A. Augsburger,
Plaintiff-Respondent,
v.
Homestead Mutual Insurance Company and George FILED
Kontos,
DEC 26, 2014
Defendants-Appellants-Petitioners,
Diane M. Fremgen
ABC Insurance Company, Janet C. Veith, Edward Clerk of Supreme Court
Veith and Convergys Corporation,
Defendants.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. Petitioners, George Kontos and
his insurance company, Homestead Mutual Insurance Company, seek
review of a published decision of the court of appeals. It
affirmed the circuit court's determination that Kontos could be
No. 2012AP641
held liable to the plaintiff, Julie Augsburger, for injuries
caused by his daughter's dogs.1
¶2 Kontos contends that he cannot be held strictly liable
for injuries caused by the dogs because he is not an "owner" of
the dogs under the statutory definition. According to Kontos,
although the statutory definition of "owner" includes a
"harborer," he did not harbor his daughter's dogs when he
permitted his daughter and her family to live in a house he
owned while he resided elsewhere. Kontos asserts that because
he lived elsewhere, he did not have the requisite control to be
a harborer under the statute.
¶3 We conclude that mere ownership of the property on
which a dog resides is not sufficient to establish that an
individual is an owner of a dog under Wis. Stat. § 174.02 (2011-
12).2 Rather, the totality of the circumstances determines
whether the legal owner of the property has exercised the
requisite control over the property to be considered a harborer
and thus an owner under the statute.
¶4 We determine that Kontos is not an "owner" under the
statute.3 A statutory owner includes one who "owns, harbors or
1
Augsburger v. Homestead Mutual Ins. Co., 2013 WI App 106,
350 Wis. 2d 486, 838 N.W.2d 88 (affirming judgment of the
circuit court for Winnebago County, Gary R. Sharpe, Judge).
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
3
Because this issue is dispositive, we need not reach the
alternative argument raised by Kontos——that even if he is an
owner, public policy weighs against holding him liable.
2
No. 2012AP641
keeps a dog." Wis. Stat. § 174.001(5). It is undisputed that
Kontos did not legally own the dogs and did not "keep" them.
Additionally, we conclude that he was not a harborer as
evidenced by the totality of the circumstances. He neither
lived in the same household as the dogs nor exercised control
over the property on which the dogs were kept. Accordingly, we
reverse the court of appeals.
I
¶5 The relevant facts in this case are undisputed.
Kontos owned a property in Larsen, Wisconsin on Grandview Road
("the Grandview property"). He purchased the Grandview property
for his daughter, Janet Veith, and her family to live in so that
she could be near her mother who was having medical difficulties
at the time.
¶6 Kontos did not reside at the property with the Veiths.
General repairs and maintenance were done by Veith's husband.
This included partially remodeling the interior of the home.
There was no formal lease between Kontos and the Veiths. Kontos
was aware that the Veiths were having financial difficulties and
he did not expect them to pay rent. At times he gave his
daughter money to help with the bills. She dealt with Kontos as
her dad and did not think of him as her landlord. In explaining
the arrangement, Veith explained that the Grandview property was
"[Kontos'] house. We live there." In contrast, her husband did
consider Kontos to be their landlord.
¶7 At the time Kontos purchased the property he was aware
that the Veiths owned horses and two dogs and that the animals
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No. 2012AP641
would be living with the family. Kontos' deposition testimony
reflects that part of the reason he chose the Grandview property
was its suitability for the horses. After the Veiths moved in,
they rescued another dog named Bailey. Bailey was pregnant and
had four puppies. The Veiths kept three of the puppies.
Although Kontos was not fond of the dogs, he did not tell his
daughter to remove them from the property. The Veiths
acknowledged he had the authority to prohibit the dogs from the
property, but that he did not exercise that authority. Although
Kontos apparently appeared on the property on multiple
occasions, the record reveals that it was not frequent.
¶8 When he did visit, Kontos would rarely go near the
dogs. He never fed the dogs, watered, or bathed them. Further,
he did not groom them or take them to the vet. He did not pay
for their food, take care of them, or instruct his daughter how
to take care of them. He did, however, yell at the dogs a few
times to be quiet.
¶9 On the date of the incident Veith invited Augsburger
to visit her at the Grandview property. When Augsburger
arrived, Veith's daughter informed her that Veith was in the
barn. As Augsburger made her way to the barn, four dogs ran at
her from the house. They attacked her and bit her multiple
times.
¶10 Augburger filed a complaint against the Veiths,
Kontos, and Homestead Mutual Insurance Company. In the
complaint Augsburger alleged that Kontos and the Veiths were
negligent in keeping and controlling the dogs and were liable
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No. 2012AP641
for her injuries under Wis. Stat. § 174.02(1), which imposes
strict liability on dog owners for injuries caused by their
dogs.
¶11 Both Kontos and Augsburger filed summary judgment
motions addressing the issue of whether Kontos was a statutory
owner.4 Kontos relied on Smaxwell v. Bayard, 2004 WI 101, 274
Wis. 2d 278, 682 N.W.2d 923, which held that under the
circumstances a landlord could not be held liable for injuries
caused by a tenant's dog. Augsburger relied on Pawlowski v.
American Family Ins. Co., 2009 WI 105, 322 Wis. 2d 21, 777
N.W.2d 67, which determined that a landowner was a statutory
owner when she harbored a dog by allowing the dog and its legal
owner to reside in her residence.
¶12 The circuit court determined that the term "harbor"
means "to give shelter or refuge to" and concluded that Kontos
gave shelter to the Veiths and their dogs. Accordingly, it
determined that he was a statutory owner.
¶13 Kontos and his insurer filed an interlocutory appeal,
asserting that he was not a statutory owner because he did not
exercise custody or control over or care for the dogs, and that
public policy precluded his liability. The court of appeals
affirmed the circuit court, reasoning that Kontos was a harborer
under the statute because he was the owner of the home and
4
Homestead Mutual Insurance Company also filed a summary
judgment motion seeking a determination that the Veiths were not
"insureds" under the policy it provided to Kontos. The circuit
court granted that motion.
5
No. 2012AP641
knowingly afforded lodging and shelter to the dogs. Augsburger
v. Homestead Mutual Ins. Co., 2013 WI App 106, ¶¶13-14, 350
Wis. 2d 486, 838 N.W.2d 88. It further determined that public
policy considerations did not preclude Kontos' liability. Id.,
¶23.
II
¶14 In this case, we are asked to review the court of
appeals' decision affirming the circuit court's grant of summary
judgment to Augsburger. When we review grants of summary
judgment we apply the same methodology as does the court of
appeals and the circuit court. Pawlowski, 322 Wis. 2d 21, ¶15.
Summary judgment is appropriate where "there is no genuine issue
as to any material fact and [] the moving party is entitled to a
judgment as a matter of law." Wis. Stat. § 802.08(2).
¶15 Here, the relevant facts are not in dispute. At issue
is whether Kontos can be held liable as an "owner" under Wis.
Stat. § 174.02. Statutory interpretation is a question of law
that we review independently of the determinations rendered by
the circuit court and the court of appeals. Pawlowski, 322 Wis.
2d 21, ¶16.
¶16 We look first to the statutory language at issue.
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory
language "in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes." Id., ¶46. Prior
caselaw can aid in this inquiry as it "may illumine how we have
6
No. 2012AP641
previously interpreted or applied the statutory language."
Belding v. Demoulin, 2014 WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d
373.
¶17 Our interpretation of a statute is guided also by the
canons of statutory construction. "When the legislature chooses
to use two different words, we generally consider each
separately and presume that different words have different
meanings." Pawlowski, 322 Wis. 2d 21, ¶22. Further,
"[s]tatutes in derogation of the common law are strictly
construed." Fuchsgruber v. Custom Accessories, Inc., 2001 WI
81, ¶26, 244 Wis. 2d 758, 628 N.W.2d 833; see also NBZ, Inc. v.
Pilarski, 185 Wis. 2d 827, 836, 520 N.W.2d 93 (Ct. App. 1994)
("A statute in derogation of the common law must be strictly
construed so as to have minimal effect on the common law
rule.").
III
¶18 We begin with the language of the statutes. Wisconsin
Stat. § 174.02, often referred to as the dog bite statute,
imposes strict liability on dog owners for injuries caused by
their dogs. It states: "the owner of a dog is liable for the
full amount of damages caused by the dog injuring or causing
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No. 2012AP641
injury to a person, domestic animal or property." Wis. Stat.
§ 174.02(a).5
¶19 A neighboring statute contains a definition of the
term "owner." Wisconsin Stat. § 174.001 provides: "As used in
this chapter, unless the context indicates otherwise: . . .
'Owner' includes any person who owns, harbors or keeps a dog."
Wis. Stat. § 174.001(5). The parties agree that Kontos was not
the legal owner of the dogs and did not keep them, but dispute
whether he harbored them.
¶20 The term "harbor" is not defined in the statute.
Accordingly, the plain language of the statutory scheme fails to
provide clear guidance on how the term "harbor" should be
interpreted in the present situation. Wisconsin caselaw,
however, has addressed the definition of the term "harbor" and
we find guidance from those cases.
¶21 A general definition of the term "harborer" is
provided in Pattermann v. Pattermann, 173 Wis. 2d 143, 149 n.4,
496 N.W.2d 613 (Ct. App. 1992).6 There, the court defined the
term by contrasting it with the term "keeper." It explained
5
Subsection (b) of the statute provides: "After notice.
Subject to s. 895.045 and except as provided in s. 895.57 (4),
the owner of a dog is liable for 2 times the full amount of
damages caused by the dog injuring or causing injury to a
person, domestic animal or property if the owner was notified or
knew that the dog previously injured or caused injury to a
person, domestic animal or property." Wis. Stat. § 174.02(b).
6
The comment in Pattermann v. Pattermann, 173 Wis. 2d 143, 149 n.4, 496 N.W.2d 613
(Ct. App. 1992), that a landowner could be liable under a common law negligence theory for
injuries caused by a known dangerous dog allowed on her premises was abrogated in Smaxwell
v. Bayard, 2004 WI 101, ¶42 n.8, 274 Wis. 2d 278, 306, 682 N.W.2d 923.
8
No. 2012AP641
"[c]ourts generally define 'keeping' as exercising some measure
of care, custody or control over the dog, while 'harboring' is
often defined as sheltering or giving refuge to a dog. Thus,
'harboring' apparently lacks the proprietary aspect of
keeping.'" Id. Further expounding on the meaning of
"harboring," the court stated that: "'[h]arboring a dog' means
something more than a meal of mercy to a stray dog or the casual
presence of a dog on someone's premises. Harboring means to
afford lodging, to shelter or to give refuge to a dog." Id. at
151. Thus, it determined that a mother who permitted her adult
son to bring his dog to a family gathering was not a "harborer."
Id.
¶22 Whether an individual fits within this definition of
"harborer" depends upon "the peculiar facts and circumstances of
each individual case." Pawlowski, 322 Wis. 2d 21, ¶20; Hagenau
v. Millard, 182 Wis. 544, 547, 195 N.W. 718 (1924). In other
words, the determination is based on a totality of the
circumstances. Cases undergoing such an analysis suggest that
whether the landowner lives on the premise with the dog is an
important factor in making the determination.
¶23 For example, this court recently construed the term
"harbor" in Pawlowski, 322 Wis. 2d 21. In that case, a
homeowner allowed an acquaintance and his dogs to live with her.
Id., ¶9. During that time, one of the dogs attacked the
plaintiff. Id., ¶11. Relying on the definition of "harborer"
in Pattermann, the court determined that the homeowner was a
statutory owner under Wis. Stat. § 174.02. Id., ¶26 (quoting
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No. 2012AP641
Pattermann, 173 Wis. 2d at 149 n.4). It explained that it
reached an outcome different from that in Pattermann due to the
different facts. Specifically, it observed that in Pattermann
"the dog did not live in the house, and the homeowner had not
'fed or cared for the dog in any way.'" Id., ¶28.
¶24 The Pawlowski court also acknowledged caselaw holding
generally that landlords are not liable for the actions of their
tenants' dogs. Id., ¶52 (citing Smaxwell, 274 Wis. 2d 278;
Gonzales v. Wilkinson, 68 Wis. 2d 154, 227 N.W.2d 907 (1975);
Malone v. Fons, 217 Wis. 2d 746, 580 N.W.2d 697 (Ct. App.
1998)). It noted that in traditional landlord-tenant cases,
"the landlord had limited control over the tenant's premises."
Id. It explained that the circumstances it was considering were
different because the dog and its owner lived in a bedroom in
the landowner's home. Id. Thus, the dog owner was "more akin
to a houseguest than a tenant," and so the landlord-tenant
caselaw did not apply. Id.
¶25 Other cases construing "owner" in the context of
liability for dog bites likewise suggest that a landowner who
lives in a separate residence from a dog is not typically
considered a statutory owner of that dog. In Hagenau, 182 Wis.
544, the court considered a situation where Ritter, who was the
defendant's sister-in-law and employee, rented two rooms in the
defendant's building in which Ritter and her dogs lived. The
court stated that: "the word 'harbor' in its meaning signifies
protection; and it has been held that the keeper is one who
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No. 2012AP641
treats the dog as living at his house and who undertakes to
control his actions. . . ." Id. at 547.
¶26 The Hagenau court stressed the importance of where the
landowner was living. It noted that the defendant "occupied
separate and distinct portions of the premises and maintained a
separate and distinct home or place of abode." The court further
determined that "[t]here is no evidence, however, in the case
which tends to indicate that [defendants] could be deemed to be
harborers of the dogs; that they furnished them with shelter,
protection, or food, or that they exercised control over the
dogs." Id. at 548. Accordingly, it concluded that the
defendants were not liable as owners. Id. at 549.
¶27 The court addressed the alternative scenario of a
defendant who permitted his adult daughter and her dog to live
with him in Koetting v. Conroy, 223 Wis. 550, 270 N.W. 625
(1937). The court observed that the dog lived "in the dwelling
house of [defendant], with his knowledge and permission, and fed
from the remnants of his table." Id. at 552. Additionally, it
stated that "[w]here a child is the owner of a dog kept on the
premises of the father, who supplies it with food and furnishes
it with shelter upon his premises, the father is deemed to be a
keeper of the dog." Id. at 552 (quoting Hagenau, 182 Wis. at
547). Accordingly, the court determined that the defendant was
a keeper under the statute.
¶28 Although Koetting discussed "owner" in terms of
"keeper" and not "harborer," the opinion seems to use the words
interchangeably. See id. at 555 ("One purpose of the statute is
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No. 2012AP641
to protect domestic animals from injury by whomsoever the dogs
are kept or harbored."); id. at 552 (noting that in order to
make a case against a defendant under Wis. Stat. § 174.02, a
plaintiff must show facts "which made him the keeper of the
dog").
¶29 Further support for the importance of where a
landowner resides can be found in Malone v. Fons, 217 Wis. 2d
746, 580 N.W.2d 697 (Ct. App. 1998). In that case the court
considered whether a landlord was a harborer of a dog owned and
kept by a tenant. The court concluded that "a landlord does not
become a harborer of a tenant's dog merely by permitting his or
her tenant to keep the dog." Id. at 766.
¶30 Augsburger argues that landlord-tenant cases, such as
Malone, are not applicable because there was no formal rental
agreement between Kontos and the Veiths. In response, Kontos
asserts that the Veiths were tenants-at-will. We need not
determine whether there was a landlord-tenant relationship in
this case. As indicated by Pawlowski, 322 Wis. 2d 21, ¶52, our
focus is not on the official relationship between the dog owner
and the landowner; rather our focus is on the amount of control
the landowner exerts over the premises on which the dog is kept—
—whether the dog's legal owner is more akin to a houseguest or a
tenant.
¶31 The rule we glean from the cases discussed is
supported by the Restatement (Second) of Torts, § 514 cmt. a
(1977). The Restatement stresses that land ownership by itself
is not enough to qualify a landowner as a harborer: "the
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No. 2012AP641
possession of the land on which the animal is kept, even when
coupled with permission given to the third person to keep it, is
not enough to make the possessor of the land liable as a
harborer of the animal." The court of appeals has previously
cited this language with approval, Malone, 217 Wis. 2d at 766
n.7, and we likewise find it persuasive.
¶32 The Restatement further emphasizes the importance of
considering whether the landowner is residing on the premises
with the dog. It explains that an individual "harbors [an
animal] by making it part of his household." Id. It states
that: "[t]his he may do by permitting a member of his household
. . . to keep the animal either in the house or on the premises
that are occupied as the home of the family group of which he is
the head." Id.
¶33 The fact scenario in this case (although admittedly
more detailed) matches an example provided in the Restatement
(Second) of Torts § 514. In explaining who qualifies as a
harborer, the Restatement observed that "a father, on whose land
his son lives in a separate residence, does not harbor a dog
kept by his son, although he has the power to prohibit the dog
from being kept and fails to exercise the power." Id.
Similarly here, Kontos' ownership of the land on which his
daughter resides in a separate residence is insufficient to
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No. 2012AP641
qualify Kontos as a harborer even though he possessed the power
to exclude the dogs but failed to exercise that power.7
¶34 Cases from a number of other jurisdictions likewise
support the view that whether the landowner resides on the
premises with the dog is relevant to determining whether the
landowner is a harborer. See, e.g., Carr v. Vannoster, 281 P.3d
1136, 1144 (Kan. Ct. App. 2012) ("[Defendant] was not a harborer
of [his son's] dog . . .; [Son] was not a member of
[defendant's] household. [Son] maintained his own household on
the premises where he lived with his wife. The home where he
kept his dog was not the home or premises occupied as the home
of the family group of which [defendant was] the head.");
Barnett v. Rowlette, 879 S.W.2d 543, 544 (Mo. Ct. App. 1994)
("the fact that Kenneth was in possession of [the dog] and lived
in a separate residence from [the landowner] prevents the
conclusion from being drawn that [the landowner] harbored [the
dog].").
¶35 The court of appeals in this case relied on another
out-of-state case, Anderson v. Christopherson, 816 N.W.2d 626
(Minn. 2012), to reach its conclusion that as the owner of the
land, Kontos was a statutory owner of the dogs. Augsburger, 350
7
The dissent criticizes the use of the Restatement to
support our analysis. Dissent ¶¶93-95. It maintains that both
section 514 and 518 of the Restatement differ from the strict
liability scheme currently in place in Wisconsin for domestic
dog bites. We agree and accordingly apply neither. We do,
however, cite to section 514 as an analogous strict liability
scheme that discusses what constitutes a "harborer."
14
No. 2012AP641
Wis. 2d 486, ¶15. In Anderson, the defendant had two houses.
He permitted his son who owned a dog to visit his Minnesota
house with his fiancée. 816 N.W.2d at 629. The defendant
specifically gave permission for his son to bring the dog, but
established rules for the dog's presence. Id. The defendant
lived in another state and was not present when his son visited.
Id. The Minnesota Supreme Court determined that the defendant
could be held liable as a harborer of the dog, and remanded the
case for a jury determination on the issue. Id. at 633.
¶36 Anderson does not convince us that mere ownership of
the property on which a dog is kept is sufficient to qualify the
landowner as a harborer. It did not hold that a defendant
necessarily is a harborer if he owns the property on which the
dog resides. Indeed, it stated that Minnesota caselaw "requires
that a harborer do more than exercise control over land upon
which the dog resides." Id. Further, Anderson quoted the
Restatement (Second) of Torts § 514 with approval. Id.
("neither the 'mere right to exclude' nor '[t]he possession of
the land on which the animal is kept, even coupled with
permission given to a third person to keep it' were sufficient
to convert the landlord of a property into a harborer.").
¶37 Insofar as Anderson considered the issue of a
defendant's ownership of the property, it merely held that
property ownership was a factor to consider in answering the
question of whether a landowner is a harborer and remanded the
case for a jury to decide whether under the facts of the case
the defendant was an owner. Id. at 633-34. Thus, Anderson does
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No. 2012AP641
not militate toward finding a landowner to be per se an owner of
a dog residing on his land.
¶38 A narrow interpretation of the word "harbor" is
consistent with the canons of statutory construction.
Augsburger raised the concern that this court would include
control in the definition of harbor, conflating the word
"harbor" with the word "keep" in Wis. Stat. § 174.001, which
would conflict with the canon of construction that different
words be given different meanings. See Pawlowski, 322 Wis. 2d
21, ¶22 ("[w]hen the legislature chooses to use two different
words, we generally consider each separately and presume that
different words have different meanings."). Whereas Pawlowski
defines "keeping" as "exercising some measure of care, custody
or control over the dog," id., ¶26, Augsburger maintains that
the court should not put any requirement for control into the
definition of "harborer."
¶39 Our interpretation of the dog bite statute does not
overlook the canon of construction that Augsburger cites. We
acknowledge that in interpreting "harborer" in a manner that
considers where the landowner resides necessarily takes into
consideration some aspect of control. An off-premises landowner
generally has less control over the property than an on-premises
landowner. However, the control that is implicated in our
interpretation of "harborer" is not the same as the control an
individual must exercise to be a "keeper." The control
considered in the analysis of "keeper" is control over the dog,
not control over the property. Pawlowski, 322 Wis. 2d 21, ¶26.
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No. 2012AP641
Thus, our interpretation of the dog bite statute which takes
into account where the landowner resides is in keeping with the
canon of construction that different words in a statute have
different meanings.
¶40 Additional support for our interpretation comes from
the canon of construction providing that legislation in
derogation of the common law should be strictly construed so as
to have minimal effect on the common law rule. Fuchsgruber, 244
Wis. 2d 758, ¶25; NBZ, Inc., 185 Wis. 2d at 836. The dog bite
statute is in derogation of the common law. Malone, 217 Wis. 2d
at 763; Pattermann, 173 Wis. 2d at 150. Under the common law
rule, an owner needed to have notice that a dog was dangerous in
order to be held liable for an injury caused by the dog.
Smaxwell, 274 Wis. 2d 278, ¶42; Nelson v. Hansen, 10 Wis. 2d
107, 118, 102 N.W.2d 251 (1960). In 1981, the legislature
amended Wis. Stat. § 174.02 to impose strict liability on dog
owners. § 10, ch. 285, Laws of 1981 ("Liability for injury. (a)
Without notice. The owner of a dog is liable for the full
amount of damages caused by the dog injuring or causing injury
to a person, livestock or property.").
¶41 As the strict liability imposed by Wis. Stat. § 174.02
on owners for injuries caused by dogs is in derogation of the
common law, the statute should be interpreted narrowly. Malone,
217 Wis. 2d at 763; Pattermann, 173 Wis. 2d at 150. A
conclusion that "harboring" requires more than mere ownership of
the land on which a dog resides is consistent with a narrow
reading of the statute. A contrary interpretation would extend
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No. 2012AP641
the strict liability in the statute, being in further derogation
of the common law rule requiring negligence or fault.
¶42 In sum, the determination of ownership under the dog
bite statute is based on the totality of the circumstances. Our
review of the statutes, caselaw, and the canons of statutory
construction convinces us that mere ownership of the property on
which a dog resides is insufficient to establish that an
individual is a harborer.
IV
¶43 Having determined that ownership of the property on
which a dog resides is not sufficient to establish that the
individual is an owner under the dog bite statute, we turn to
the facts of this case.
¶44 First, we consider the degree of control that Kontos
had over the Grandview property to determine whether the Veiths
were more akin to houseguests or tenants. There are limited
facts to support the conclusion that the Veiths were
houseguests. In essence, they are limited to the fact that
there was no formal rental agreement between Kontos and the
Veiths, and that Kontos did not expect the Veiths to pay rent
due to their financial circumstances.
¶45 On the other hand, multiple facts suggest that the
Veiths were more akin to tenants. Kontos did not live at the
property with the Veiths, but maintained a separate residence
approximately seven miles away. The record does not reflect
that he prescribed particular rules for the Veiths to follow.
Mr. Veith performed repairs and general maintenance on the
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No. 2012AP641
property and partially remodeled the interior of the home.
Further, although Kontos apparently appeared on the property on
multiple occasions, the record reveals that it was not frequent.
¶46 Overall, the record demonstrates that Kontos did not
exercise control over the Grandview property. By all
indications, Kontos provided the property for his daughter with
the intention that she treat it as her home. This was not the
situation at issue in Pawlowski where the dog's legal owner
lived in the same residence with the property owner in a
relationship akin to a houseguest. Rather, the Veiths lived on
the Grandview property, maintaining it as if it were their own
residence.
¶47 Considering the totality of the circumstances detailed
above, we conclude that Kontos was not a statutory owner of the
dogs such that he could be held liable under Wis. Stat.
§ 174.02. It is undisputed that Kontos did not legally own the
dogs and did not exercise the requisite care, custody or control
of the dogs to qualify as a keeper. Further, he was not a
harborer of the dogs. Although Kontos provided shelter for his
daughter and family by buying the house for them to live in, he
exercised no control over that property and maintained a
separate residence. Ultimately, it was his daughter who
provided shelter to the dogs.
V
¶48 We conclude that mere ownership of the property on
which a dog resides is not sufficient to establish that an
individual is an owner of a dog under Wis. Stat. § 174.02.
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No. 2012AP641
Rather, the totality of the circumstances determines whether the
legal owner of the property has exercised the requisite control
over the property to be considered a harborer and thus an owner
under the statute.
¶49 We determine that Kontos is not an "owner" under the
statute. A statutory owner includes one who "owns, harbors or
keeps a dog." Wis. Stat. § 174.001(5). It is undisputed that
Kontos did not legally own the dogs and did not "keep" them.
Additionally, we conclude that he was not a harborer as
evidenced by the totality of the circumstances. He neither
lived in the same household as the dogs nor exercised control
over the property on which the dogs were kept. Accordingly, we
reverse the court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
20
No. 2012AP641.dtp
¶50 DAVID T. PROSSER, J. (dissenting). On June 21,
2008, Julie Augsburger (Augsburger) visited the home of her
longtime friend Janet Veith in rural Winnebago County.
Augsburger had visited Janet, her husband Edward, and their
daughter Jordan (the Veiths) on other occasions, and she knew
that the Veiths kept multiple dogs on the premises. She asked
Jordan whether the dogs had been let out of the house into a
fenced-in yard because she had to walk through the yard to get
to the barn where Janet was working. Jordan told her the dogs
were not out.
¶51 When Augsburger entered the fenced-in area, she was
suddenly attacked by four dogs. The dogs repeatedly bit her and
tore off her pants. She was bitten at least 11 times and
suffered serious lacerations on both legs——that is, on her left
thigh, left calf, and right calf. Some of these lacerations
required "surgical closure." The most serious laceration——on
her right calf——measured ten centimeters, resulting in a "6 cm
long dented area." Augsburger was given morphine to relieve her
pain when she was transported by ambulance to a local hospital,
and she was given another opiate at the hospital.
¶52 In due course, Augsburger sued Janet and Edward Veith;
Janet's father, George Kontos; and Kontos's insurer, Homestead
Mutual Insurance Company, to recover damages. The question in
this case is whether George Kontos may be held liable for the
full amount of damages caused by the dogs, on grounds that he
1
No. 2012AP641.dtp
"harbored" the dogs under Wis. Stat. §§ 174.001(5) and
174.02(1).1
¶53 The majority answers this question "no," concluding
that he is in no way liable. It reverses a published decision
of the court of appeals, which affirmed a ruling of the
Winnebago County Circuit Court, Gary R. Sharpe, Judge, that
reached the opposite conclusion. Augsburger v. Homestead Mut.
Ins. Co., 2013 WI App 106, 350 Wis. 2d 486, 838 N.W.2d 88.
Because I believe the majority is misinterpreting and
misapplying the applicable statutes, I respectfully dissent.
I
¶54 The statutory law in this case is found in Chapter 174
of the Wisconsin Statutes. Wisconsin Stat.§ 174.02 is entitled
"Owner's liability for damage caused by dog." Subsection (1),
"Liability for Injury," provides in part:
(a) Without notice. . . . [T]he owner of a dog
is liable for the full amount of damages caused by the
dog injuring or causing injury to a person, domestic
animal or property.
(b) After notice. . . . [T]he owner of a dog is
liable for 2 times the full amount of damages caused
by the dog injuring or causing injury to a person,
domestic animal or property if the owner was notified
or knew that the dog previously injured or caused
injury to a person, domestic animal or property.
¶55 The term "owner" is defined in Wis. Stat.
§ 174.001(5): "'Owner' includes any person who owns, harbors or
keeps a dog." (Emphasis added.)
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2012AP641.dtp
¶56 The quoted statutes were adopted at different times.
Wisconsin Stat. § 174.001(5) was part of Section 8m, Chapter
289, Laws of 1979. It became effective on January 1, 1981.
Wisconsin Stat. § 174.02(1) was part of Section 10, Chapter 285,
Laws of 1981. It became effective on May 1, 1982.
Understanding the legislative history of these dog bite statutes
is essential to rendering a correct interpretation of the
statutes.
¶57 There have been dog bite statutes in Wisconsin since
the early 1850s. Section 1620 of the Wisconsin Statutes of 1898
read in part as follows:
Owner's Liability. The owner or keeper of any
dog which shall have injured or caused the injury of
any person or property . . . shall be liable to the
person so injured . . . without proving notice to the
owner or keeper of such dog or knowledge by him that
his dog was mischievous or disposed to kill
[animals] . . . .
This same language appeared in Wis. Stat. § 174.02 (1923), and
the language and substance of this statute remained largely
unchanged until Wis. Stat. § 174.02 was repealed and recreated
in 1982.
¶58 The above-quoted statute was not a strict liability
statute. This was made clear in Chambliss v. Gorelik, 52
Wis. 2d 523, 191 N.W.2d 34 (1971), and in an earlier case,
Nelson v. Hansen, 10 Wis. 2d 107, 102 N.W.2d 251 (1960).
¶59 In Chambliss, Justice Nathan Heffernan, writing for a
unanimous court, stated:
At common law the owner or keeper of a dog was
not liable for the vicious or mischievous acts of the
dog unless he had prior knowledge of the vicious or
mischievous propensities of the dog or unless the
3
No. 2012AP641.dtp
injury was attributable to the negligence of the owner
or keeper. Nelson v. Hansen (1960), 10 Wis. 2d 107,
102 N.W.2d 251. . . .
[I]n Nelson v. Hansen, . . . the court determined
that the legislature did not impose or intend to
impose strict liability on the keeper of a dog. It
was also determined that an action brought under the
statute continued to be one for negligence but that
the statute eliminated the necessity of proving
scienter. In all other respects, the responsibility
of an owner or keeper remained the same. As we said
in Nelson v. Hansen, . . . page 115, after discussion
of early cases: ". . . the statute only applied to
injuries from mischievous or vicious acts of a dog for
which at common law the owner would not be liable
unless he had knowledge or ought to have known of such
propensities." . . .
For cases under the statute in which no proof of
scienter is required and where there is no evidence of
the keeper's negligence . . . there must be proof that
the dog was vicious or mischievous. . . .
Thus, under the statute, it continues to be
necessary to show that the dog, prior to the act
complained about, had vicious and destructive habits.
The statute merely eliminates the necessity of proving
that the keeper had such knowledge.
Chambliss, 52 Wis. 2d at 528-30 (quoting Nelson, 10 Wis. 2d at
115).
¶60 A flurry of legislative activity in the early 1980s
significantly altered the law. First, Wis. Stat. § 174.001(5)
provided a definition of "owner" that added the word "harbors,"
and also used the word "includes" before its reference to "any
person who owns, harbors or keeps a dog." These changes
extended dog bite liability to a broader group of people.
¶61 Second, the rewritten § 174.02(1) borrowed a provision
from a statute that the legislature repealed in 1982——namely,
Wis. Stat. § 174.03 (1979)——that provided double damages when a
dog known to be dangerous is responsible for a repeat attack on
4
No. 2012AP641.dtp
animals; the rewritten statute made double damages available
when a repeat attack injures a person.
¶62 Third, the rewritten § 174.02(1) also created strict
liability. A strict liability statute imposes liability for a
dog bite irrespective of an "owner's" scienter and irrespective
of whether the dog had a previous propensity for biting.
¶63 The strict liability point was discussed in Cole v.
Hubanks, in which the court said: "Wisconsin Stat. § 174.02 is a
'strict liability' statute wherein the legislature has made the
policy choice to place the burden of damage caused by a dog on
the dog's owner." Cole v. Hubanks, 2004 WI 74, ¶22, 272
Wis. 2d 539, 681 N.W.2d 147 (citing Becker v. State Farm Mut.
Auto. Ins. Co., 141 Wis. 2d 804, 815, 416 N.W.2d 906 (Ct. App.
1987); Fifer v. Dix, 2000 WI App 66, ¶12, 234 Wis. 2d 117, 608
N.W.2d 740).2
¶64 The court's statement in Cole was affirmed unanimously
in Pawlowski v. American Family Mutual Insurance Co., 2009 WI
105, ¶¶14, 17, 322 Wis. 2d 21, 777 N.W.2d 67, when the court
said, "Both a legal owner and a statutory owner of a dog can be
simultaneously strictly liable under Wis. Stat. § 174.02. . . .
Section 174.02 is a strict liability statute."
¶65 Surprisingly, the majority opinion places little
emphasis on the history of the two statutes. In fact, it seeks
to compare the present statutes, not to the prior statute in
2
The decision in Becker v. State Farm Mutual Automobile
Insurance Co., 141 Wis. 2d 804, 416 N.W.2d 906 (Ct. App. 1987),
relied on Meunier v. Ogurek, 140 Wis. 2d 782, 412 N.W.2d 155
(Ct. App. 1987).
5
No. 2012AP641.dtp
force from 1898 to 1982, but to Wisconsin common law that has
not existed since at least 1871. See § 8, ch. 67, Laws of 1871.
The majority relies selectively on a canon of statutory
construction (statutes in derogation of the common law),
Majority op., ¶40, but it fails to acknowledge that one of the
present statutes contains a definition of "owner" that uses the
word "includes," which invites a broader interpretation of the
statute. See Black's Law Dictionary 766 (7th ed. 1999) ("The
participle including typically indicates a partial
list . . . ."); see also Hirschhorn v. Auto-Owners Ins. Co.,
2012 WI 20, ¶36, 338 Wis. 2d 761, 809 N.W.2d 529 ("When a list
of terms follows the word 'includes,' the list is commonly
understood to be non-exhaustive.").
¶66 The purpose of the revised dog bite statutes was well
stated in Pawlowski, 322 Wis. 2d 21, ¶76:
The purpose of Wis. Stat. § 174.02 is "to protect
those people who are not in a position to control the
dog." [quoting Armstrong v. Milwaukee Mut. Ins. Co.,
202 Wis. 2d 258, 268, 549 N.W.2d 723 (1996).]
Imposing liability . . . furthers the legislative
policy embodied in Wis. Stat. § 174.02 of protecting
innocent people from injury by dogs, of ensuring that
an innocent victim of a dog bite recovers
compensation, and of making a person who owns,
harbors, or keeps a dog responsible for injuries
inflicted by the dog.
¶67 In sum, the statutory history of Wis. Stat.
§§ 174.001(5) and 174.02(1) and the clear policy embodied in the
statutes are not consistent with the majority's restrictive
reading of these statutes.
II
6
No. 2012AP641.dtp
¶68 The key word requiring interpretation is "harbors." I
agree with much of the majority's discussion of the pertinent
case law. I disagree with the majority's failure to apply that
law.
¶69 The majority opinion reads in part:
The term "harbor" is not defined in the
statute. . . . Wisconsin caselaw, however, has
addressed the definition of the term "harbor" and we
find guidance from those cases.
A general definition of the term "harborer" is
provided in Pattermann v. Pattermann, 173 Wis. 2d 143,
149 n.4, 496 N.W.2d 613 (Ct. App. 1992). There, the
court defined the term by contrasting it with the term
"keeper." It explained "[c]ourts generally define
'keeping' as exercising some measure of care, custody
or control over the dog, while 'harboring' is often
defined as sheltering or giving refuge to a dog.
Thus, 'harboring' apparently lacks the proprietary
aspect of 'keeping.'" Id. Further expounding on the
meaning of "harboring," the court stated that:
"'harboring a dog' means something more than a meal of
mercy to a stray dog or the casual presence of a dog
on someone's premises. Harboring means to afford
lodging, to shelter or to give refuge to a dog." Id.
at 151.
Majority op., ¶¶20-21 (emphasis added)(footnote omitted).
¶70 In light of this case law, the question is whether
George Kontos harbored the Veiths' dogs; that is, whether he
provided lodging or shelter for the Veiths' dogs.
¶71 The circuit court (Judge Sharpe) said:
The definition of harbor is "to give shelter or
refuge to" and there is no question that Mr. Kontos
gave shelter to Edward and Janet Veith and their dogs.
No landlord tenant relationship existed. . . . [T]he
Court feels that [Mr. Kontos] had sufficient
connection and that the arrangement was based upon
family as opposed to a landlord tenant/business
relationship. As a result, the Court finds that Mr.
7
No. 2012AP641.dtp
Kontos harbored the dogs pursuant to Wis. Stats.
§ 174.001(5) . . . .
(Emphasis added.)
¶72 In a well-reasoned opinion, the court of appeals
affirmed this determination:
Like the homeowner in Pawlowski, Kontos afforded the
Veiths' dogs shelter and lodging for many months, some
for more than a year, before the incident, and thus he
harbored them. Further, his status as a harborer is
not undermined by the fact he was not also a keeper
exercising custody or control over the dogs.
Augsburger, 350 Wis. 2d 486, ¶12.
¶73 The court added:
Kontos contends in his reply brief that because
he personally resided in a different home from the
dogs, this case is substantively distinguishable from
Pawlowski. We disagree. In both cases, the owner of
the homes knowingly afforded lodging and shelter to
the dogs, the relevant consideration in deciding a
question of "harboring." The fact that Kontos resided
in a separate home from the dogs, and therefore was
not in a convenient position to and in fact did not
exercise custody or control over or care for the dogs,
would be most relevant if the issue was whether Kontos
was a "keeper." Indeed, had the legislature limited
the statutory definition of "owner" to only owners and
keepers of dogs, we would have no difficulty holding
for Kontos. But the legislature did not so limit the
statute. In choosing to include "harbor[ers]" in the
definition of owners, the legislature broadened the
pool of potentially liable persons beyond just those
who own or keep offending dogs.
Id., ¶13.
¶74 The majority opinion correctly states that the "mere
ownership of the property on which a dog resides is not
sufficient to establish that an individual is an owner of a dog
under Wis. Stat. § 174.02." Majority op., ¶48. Instead, "the
totality of the circumstances determines whether the legal owner
of the property has exercised the requisite control over the
8
No. 2012AP641.dtp
property to be considered a harborer and thus an owner under the
statute." Id.
¶75 This brings us to the totality of the circumstances
and raises the question of what control Mr. Kontos did not
exercise over "the circumstances."
III
¶76 The facts are not in dispute. In 2007 George Kontos
and his wife were living at their home in Butte Des Morts in
Winnebago County. Mrs. Kontos was seriously ill. Their
daughter, Janet Veith, was living with her husband and daughter
in Colorado, under circumstances that permitted the Veiths to
maintain horses and dogs on their property.
¶77 Mr. and Mrs. Kontos wanted their daughter to come home
to be near her mother. Janet Veith wanted to come. However,
the Veiths were in no position financially to give up what they
had in Colorado in terms of property and employment to move to
Wisconsin. George Kontos made that possible.
¶78 In sum, Mr. Kontos asked that Janet and her family
relocate to Wisconsin to be near Mrs. Kontos. Mr. Kontos helped
pay for the move. Mr. Kontos purchased a house for the Veiths
to live in and he selected a house in a rural area that
permitted the Veiths to keep horses and dogs. He continued to
own that property. He paid the taxes on the property. And he
acquired the only insurance policy on the property.
¶79 The Veiths did not pay rent for the property and were
not expected to pay rent. Even if they earned some income, the
Veiths were financially subsidized by Mr. Kontos. For example,
he made Janet's car payments. When Janet wrote Mr. Kontos a
9
No. 2012AP641.dtp
$2,000 check as partial reimbursement for this assistance, he
did not cash it. Why? When Mr. Kontos was asked in a deposition
whether it was "accurate to say that as far as [he] knew [the
Veiths] just have enough money to get by," he replied "Yes."
The deposition continued: "[Question:] Is that yes? [Answer:]
That's probably a generous statement."
¶80 As the court of appeals explained, "Kontos was aware
the Veiths had two dogs when they moved into the property in
February 2007, and he permitted these and additional dogs they
acquired a few months later to be kept on the property."
Augsburger, 350 Wis. 2d 486, ¶3.
¶81 At the time of the attack in June 2008, there were six
dogs on the property. The presence of the dogs was not unknown
to Mr. Kontos because he visited the property on multiple
occasions and had some interaction with them.3
¶82 The majority opinion states: "Kontos would rarely go
near the dogs. He never fed the dogs, watered, or bathed them.
Further, he did not groom them or take them to the vet. He did
not pay for their food, take care of them, or instruct his
daughter how to take care of them." Majority op., ¶8.
¶83 Most of these statements are not relevant because they
involve "keeping" a dog. Mr. Kontos is not alleged to have
"kept" the dogs. Even so, the statements go too far. Although
Mr. Kontos may not have gone to the supermarket to buy food for
the dogs, his various financial subsidies to the Veiths made it
3
For example, Kontos would sometimes yell at the dogs to be
quiet when he was visiting the Veiths.
10
No. 2012AP641.dtp
possible for the Veiths to acquire additional dogs, buy food for
the dogs, and get all of the dogs properly licensed.
¶84 Mr. Kontos admittedly did not assert direct control
over the dogs but he had complete authority to remove them from
the property, as he could have asked the Veiths to leave the
property. He did exercise a lot of control over the property——
more than simple ownership. For instance, he stored his boat on
the property.
¶85 Looking at the totality of the circumstances, it would
be hard to contend that Mr. Kontos did not shelter the Veith
family. It would be hard to contend that Mr. Kontos did not
shelter the Veith horses, inasmuch as he enabled them to move
from Colorado and bought property with a barn for horses.
¶86 Why then did he not shelter the dogs? Why was the
circuit court clearly erroneous when it found that Mr. Kontos
had harbored the dogs? The majority does not provide a
satisfactory answer.
IV
¶87 The majority cannot be indifferent to the plight of
the victim in this case. It knows that the Veiths, who owned,
harbored, and kept six dogs on the property but had no liability
insurance——even though there had been a previous dog bite
incident involving a woman who kept her horse with the Veiths——
are in no position to pay damages to Julie Augsburger. Thus, it
must be acting in the belief that it is serving some higher
purpose when it denies recovery.
¶88 The first purpose, apparently, is to protect landlords
from liability for the torts of their tenants.
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No. 2012AP641.dtp
¶89 The majority concludes that "mere ownership of the
property on which a dog resides is not sufficient to establish
that an individual is an owner of a dog under Wis. Stat.
§ 174.02." Majority op., ¶¶3, 48. This principle is
unassailable. It is supported by our decisions in Gonzales v.
Wilkinson, 68 Wis. 2d 154, 158, 227 N.W.2d 907 (1975), and
Smaxwell v. Bayard, 2004 WI 101, ¶¶46-54, 274 Wis. 2d 278, 682
N.W.2d 923. The holdings in these cases are not in jeopardy.
¶90 Nonetheless, the majority is unwilling to acknowledge
the pervasive and unusual influence that Mr. Kontos had over the
Veith family's circumstances. The "mere ownership" of the
property is but one of the circumstances present in this case;
it is the totality of all the circumstances that demonstrates
that Kontos harbored the dogs that mauled Julie Augsburger.
¶91 The circuit court stated unequivocally that "No
landlord tenant relationship existed" between Mr. Kontos and the
Veiths. Yet the majority seeks to keep this issue alive,
saying: "We need not determine whether there was a landlord-
tenant relationship in this case." Majority op., ¶30.
¶92 In truth, this case is not about landlord liability
for dog bites. This case is about a harborer's liability for
dog bites. The majority's concern about landlords on these
facts is not well founded.
¶93 A second purpose is to demonstrate the court's respect
for the American Law Institute's Restatements of the Law. The
majority notes that "[t]he Restatement . . . emphasizes the
importance of considering whether the landowner is residing on
the premises with the dog," and that "[t]he fact scenario in
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No. 2012AP641.dtp
this case . . . matches an example provided in the Restatement
(Second) of Torts § 514." Majority op., ¶¶ 32-33. This example
states:
Thus a father, on whose land his son lives in a
separate residence, does not harbor a dog kept by his
son, although he has the power to prohibit the dog
from being kept and fails to exercise the power or
even if he presents the dog to his son to be so kept.
Restatement (Second) of Torts § 514 cmt. a (1977).
¶94 The majority's focus on the Restatement (Second) of
Torts is misguided. Section 514 concerns "Wild Animals or
Abnormally Dangerous Domestic Animals." The example from § 514
dates back at least to 1938 and the Restatement (First) of
Torts, in which it also appears. See Restatement (First) of
Torts § 514 cmt. a (1938). That section, too, dealt with "Wild
Animals or Abnormally Dangerous Domestic Animals."
¶95 The Restatement considers dogs, however, to be
domestic animals that are not abnormally dangerous. Restatement
(Second) of Torts § 509 cmt. f (1977).4 Indeed, neither
Restatement scheme imposes strict liability on owners or
harborers of dogs. Under the Restatement:
4
Restatement (Second) of Torts § 509 cmt. f (1977) states:
Although dogs, even hunting dogs, have no material
utility comparable to cattle, horses and other
livestock, they have from time immemorial been
regarded as the friends and companions of man. The
great majority of dogs are harmless, and the
possession of characteristics dangerous to mankind or
to livestock is properly regarded as abnormal to them.
Consequently the possessor of a dog is not liable for
its biting a person or worrying or killing livestock
unless he has reason to know that it is likely to do
so.
13
No. 2012AP641.dtp
one who possesses or harbors a domestic animal that he
does not know or have reason to know to be abnormally
dangerous, is subject to liability for harm done by
the animal if, but only if,
(a) he intentionally causes the animal to do the
harm, or
(b) he is negligent in failing to prevent the
harm.
Restatement (Second) of Torts § 518 (1977).
¶96 The treatment of dog bite liability under the
Restatement differs from the treatment of dog bite liability
under the Wisconsin statute even before the 1982 shift to strict
liability. Our statute provided for liability of owners of
vicious or mischievous dogs even if the owner lacked scienter as
to the dog's nature and did not act intentionally or
negligently. See Chambliss, 52 Wis. 2d at 530. The
Restatement, on the other hand, requires negligence or intent in
the absence of scienter. Needless to say, the Restatement
scheme differs greatly from the strict liability scheme
currently in place.
¶97 Affirming the circuit court's determination that
Kontos harbored the dogs under the totality of these
circumstances would not offend the Restatement——the Restatement
has no relation to Wisconsin's dog bite statute. Our definition
of "harbor" in a strict liability statute passed in 1982 should
not be guided by a comment on a negligence scheme from 1938.
V
¶98 In conclusion, the majority misses the mark in its
application of the law to the facts. Only by ignoring the clear
purpose of Wisconsin's strict liability dog bite statute and
14
No. 2012AP641.dtp
looking instead to outmoded authority and a canon of
construction contradicted by the statute itself, does the
majority arrive at its conclusion that Kontos did not "harbor"
the Veiths' dogs. Yet this result forecloses any realistic
possibility that Julie Augsburger will recover damages for her
medical expenses, as well as her scars and her pain and
suffering. This outcome contradicts the language, design, and
purpose of the statute, and unfairly victimizes Augsburger a
second time.
¶99 For the foregoing reasons, I respectfully dissent.
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1