STATE OF MICHIGAN COURT OF APPEALS CHRISTOPHER A. FAGAN, Plaintiff-Appellant, UNPUBLISHED March 15, 2007 v No. 264270 Muskegon Circuit Court MICHAEL A. LOMUPO and RHONDA L. LC No. 03-042636-NO LOMUPO, Defendants-Appellees. Before: Fort Hood, P.J., and Smolenski and Murray, JJ. PER CURIAM. In this dog bite case, plaintiff appeals as of right the trial court s order denying his motion for partial summary disposition and the trial court s denial of his motion for a directed verdict. We affirm the trial court s decision denying the motion for partial summary disposition, but we reverse the trial court s decision denying the motion for a directed verdict. We remand for a new trial on damages. In June 2003, plaintiff drove to defendants house to bring a magazine to defendant Michael A. Lomupo. As plaintiff stood outside the gate to defendants fenced-in backyard, Ramses, defendants 110-pound German Shepard, attacked plaintiff. Ramses bit plaintiff s shirt and leg. Plaintiff subsequently sued defendants claiming that they were liable for the injuries he sustained from the attack, including the aggravation of a preexisting injury allegedly caused by his fall. Plaintiff sought recovery under the dog bite statute, see MCL 287.351(1) and under theories of strict liability and negligence. Plaintiff filed a motion for partial summary disposition pursuant to MCR 2.116(C)(10) on his statutory liability claim. He argued that any movement he made at the gate did not provoke Ramses. The trial court, concluding that reasonable minds could differ regarding whether plaintiff s movement provoked Ramses, denied the motion for partial summary disposition. After the close of proofs, plaintiff moved for a directed verdict on his statutory liability claim, arguing that he did not provoke Ramses. The trial court again determined that reasonable minds could differ on whether plaintiff provoked Ramses and denied plaintiff s motion. Upon the conclusion of the trial, the jury returned a verdict of no cause for action and the trial court entered judgment accordingly. -1-
On appeal, plaintiff claims that the trial court erred in denying his motion for partial summary disposition. We review a trial court s decision on a motion for summary disposition de novo. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). Summary disposition is proper under MCR 2.116(C)(10) if the affidavits and documentary evidence presented, viewed in the light most favorable to the non-moving party, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). MCL 287.351(1) provides: 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. The dog bite statute has consistently been interpreted as creating an almost absolute liability in the dog owner, except in cases where the dog has been provoked. Tate v Grand Rapids, 256 Mich App 656, 658; 671 NW2d 84 (2003). Intentional acts, as well as unintentional acts, may constitute provocation. Brans v Extrom, 266 Mich App 216, 219; 701 NW2d 163 (2005). For an unintentional act to constitute provocation, it must either be directed at the dog or the dog s response must be proportional to the victim s unintentional act. Bradacs v Jiacabone, 244 Mich App 263, 276; 625 NW2d 108 (2001). At her deposition, Rhonda testified that Dawn Achterhoff, a neighbor who witnessed the attack, saw plaintiff put the magazine over Ramses s head after he walked up to the gate. Rhonda further testified that she too saw plaintiff put the magazine over Ramses s head. There was no evidence suggesting that plaintiff merely rested his arms on the gate and that the magazine inadvertently hovered over Ramses s head. Based on this evidence, a trier of fact could infer that plaintiff s conduct of extending the magazine over the gate was directed toward Ramses. This inference is strengthened by Michael s deposition testimony that Dawn told him Ramses was barking and growling at plaintiff as plaintiff approached the gate. Further, because Michael averred that there was bad blood between plaintiff and Ramses and that plaintiff often acted in an antagonistic manner toward Ramses, a trier of fact could infer that plaintiff put the magazine over Ramses s head to taunt Ramses. Accordingly, viewing the evidence in the light most favorable to defendants, the non-moving party, a trier of fact could conclude that plaintiff provoked Ramses when he placed the magazine over Ramses s head. The trial court properly denied plaintiff s motion for partial summary disposition. Plaintiff also claims that the trial court erred in denying his motion for a directed verdict. We review a trial court s decision to grant or deny a motion for a directed verdict de novo. Tobin v Providence Hosp, 244 Mich App 626, 642; 624 NW2d 548 (2001). A directed verdict is appropriate only when no factual question exists on which reasonable jurors could differ. Smith v Foerster-Bolser Constr, Inc, 269 Mich App 424, 428; 711 NW2d 421 (2006). We consider the evidence in the light most favorable to the non-moving party, making all reasonable inferences in favor of the non-moving party. Tobin, supra at 643. -2-
The evidence presented at trial, specifically the evidence regarding Ramses s location when plaintiff extended the magazine over the gate, was significantly different than the evidence presented to the trial court when it ruled on plaintiff s motion for partial summary disposition. At trial, no one testified that Ramses was at the gate when plaintiff extended the magazine over the gate. According to Dawn, Ramses ran to the gate from around the corner after plaintiff raised the magazine up and moved the gate s chain. Similarly, Brian Achterhoff, Dawn s husband, testified that Ramses ran toward the gate after plaintiff extended his hands over the gate. Rhonda testified that Ramses was running toward plaintiff as he extended the magazine over the gate. But, more importantly, Rhonda testified that plaintiff s action of extending the magazine over the gate was not directed toward Ramses but, rather, it was done to enable plaintiff to rest his arm on the gate. Accordingly, the evidence presented at trial established that plaintiff s extension of the magazine over the gate was not directed toward Ramses. In addition, no evidence was presented at trial that plaintiff made any quick or threatening gestures toward Ramses when he extended the magazine over the gate. Thus, we find the present case indistinguishable from Stroop v Day, 271 Mont 314; 896 P2d 439 (1995), in which the Montana Supreme Court held that the plaintiff did not provoke the dog when the plaintiff, upon leaning against the fence, merely extended his hands and forearms across the fence. Further, we conclude that Ramses s response of biting plaintiff s shirt and leg was not proportional to plaintiff s act of extending the magazine over the gate. Ramses may have perceived plaintiff s presence immediately outside the fenced-in backyard and the extension of the magazine over the gate as threatening to his territory. But, although Dawn testified that plaintiff moved the gate s chain, there was no evidence presented that plaintiff actually unlatched the chain or opened the gate. Thus, there was no evidence that plaintiff entered the fenced-in backyard. In addition, as already stated, there was no evidence that plaintiff made any sudden gestures that may have taunted Ramses. See Bradacs, supra at 273. Because plaintiff remained on the opposite side of the gate as Ramses, we conclude that Ramses s reaction of biting plaintiff s shirt and leg was out of proportion to any motion made by plaintiff. Because plaintiff s motion was not directed toward Ramses and because Ramses s response was out of proportion to plaintiff s motion, the trial court erred in denying plaintiff s motion for a directed verdict. Bradacs, supra at 276. Because plaintiff did not provoke Ramses, defendants are liable for damages suffered by plaintiff. MCL 287.351(1). We remand for a new trial on damages. Affirmed in part, reversed in part, and remanded for a new trial on damages. We do not retain jurisdiction. /s/ Karen M. Fort Hood /s/ Michael R. Smolenski -3-
STATE OF MICHIGAN COURT OF APPEALS CHRISTOPHER A. FAGAN, Plaintiff-Appellant, UNPUBLISHED March 15, 2007 v No. 264270 Muskegon Circuit Court MICHAEL A. LOMUPO and RHONDA L. LC No. 03-042636-NO LOMUPO, Defendants-Appellees. Before: Fort Hood, P.J., and Smolenski and Murray, JJ. MURRAY, J. (concurring in part/dissenting in part). I concur in the majority s decision affirming the trial court s order denying plaintiff s motion for partial summary disposition. However, I part ways with the majority s decision to reverse the trial court s order denying plaintiff s motion for a directed verdict. In my view, the evidence presented during trial warranted the denial of plaintiff s motion for directed verdict. I would therefore affirm the judgment entered in favor of defendants. In Thomas v McGinnis, 239 Mich App 636, 643-644; 609 NW2d 222 (2000), we set forth the standard for reviewing a decision on a motion for directed verdict: [A] trial court s ruling with respect to a motion for a directed verdict is reviewed de novo. Meagher v Wayne State University, 222 Mich App 700, 708; 565 NW2d 401 (1997). In reviewing the trial court s ruling, this Court views the evidence presented up to the time of the motion in the light most favorable to the non-moving party, grants that party every reasonable inference, and resolves any conflict in the evidence in that party s favor to decide whether a question of fact existed. Hatfield v St Mary s Medical Center, 211 Mich App 321, 325; 535 NW2d 272 (1995). A directed verdict is appropriate only when no factual question exists regarding which reasonable minds may differ. Meagher, supra at 708. The majority concludes that there was no question of fact upon which reasonable minds could disagree regarding whether plaintiff provoked defendant s dog, Ramses. According to the majority [a]t trial, no one testified that Ramses was at the gate when plaintiff extended the magazine over the gate. I disagree. During questioning by the court, Mrs. Lomupo testified as follows: -1-
Q (by the court): Okay. So when Mr. Fagan came to rest at this post, the dog was coming towards him. Is that what you re saying? A: Yes. Q: All right. How far away was the dog from him when he rested his hands on this post? A: I don t know. I mean it s just kind of a short space. Q: I mean - - A: That I had to look. Q: Like you to the end of the courtroom? A: No. Closer. During further questioning from the attorneys, Mrs. Lomupo testified that Ramses was closer to plaintiff when he put his arm on the top of the fence than she was to the court reporter in the courtroom. Although reading the transcript makes it difficult to discern how far that distance was, according to Mrs. Lomupo s testimony, it was clearly less than eight feet. However, more importantly than that is the fact that the jury was fully aware of how close Mrs. Lomupo testified Ramses was to plaintiff when he put his arm down onto the top of the fence. Additionally, during further recross-examination, Mrs. Lomupo more specifically testified that plaintiff was bit by Ramses as he lowered his hand onto the gate: Q (by Mr. Bosch): When Chris raised his hand at the gate, is that when he got bit? A: That s when he got bit. Q: At the end of the motion? A: It happened very fast. It went down like this, you know. Q: That s when he got bit? A: Right. Q: When his hand stops at the end of the motion, he s bit? A: Right. That s how fast it happened. It s not like he was standing there waiting. Like I say, when Ramses hears a car come into the driveway, he s out there [emphasis added]. In light of this testimony, there is no question that Mrs. Lomupo testified that plaintiff was bit as his arm was coming forward (with the magazine in his hand) onto the gate. It is also clear that at other times during her testimony, Mrs. Lomupo testified that plaintiff was -2-
motionless as the dog came up and bit plaintiff. In my view, either version presented by Mrs. Lomupo could have been accepted by a reasonable fact finder. This was obviously a quick event, and the jury was in the courtroom and able to discern the veracity of Mrs. Lomupo s versions of events. And, if the jury accepted Mrs. Lomupo s testimony as quoted above, it would certainly support its verdict that plaintiff provoked Ramses into biting him as his hand was coming down towards the dog with a magazine in his hand. That evidence, coupled with the undisputed evidence that Ramses did not like plaintiff, was enough for the jury to conclude that there was provocation in this case. In light of the foregoing, the evidence did not support the granting of a directed verdict for plaintiff. I would affirm. /s/ Christopher M. Murray -3-