Lewellin Ex Rel. Lewellin v. Huber

456 N.W.2d 94, 1990 WL 66241
CourtCourt of Appeals of Minnesota
DecidedJune 26, 1990
DocketC5-90-75
StatusPublished
Cited by3 cases

This text of 456 N.W.2d 94 (Lewellin Ex Rel. Lewellin v. Huber) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewellin Ex Rel. Lewellin v. Huber, 456 N.W.2d 94, 1990 WL 66241 (Mich. Ct. App. 1990).

Opinions

OPINION

PARKER, Judge.

This is a civil action for wrongful death resulting from injuries Chazdon Lewellin [95]*95sustained when he was struck by a motor vehicle. Susan and Randy Huber appeal from summary judgment in favor of James Lewellin and the heirs and next of kin of Chazdon. The parties stipulated to the facts supporting the cross-motions for summary judgment and to the amount of damages.

The Hubers argue that the trial court erred in applying Minn.Stat. § 347.22 (1988), imposing strict liability based on the following stipulated facts (in part material): # * * * * *

3. That prior to Mr. and Mrs. Huber going on a trip they had arranged for Tonia Stomberg to housesit for their property [located at 13060 Sylvan Avenue, Lindstrom, MN], Ms. Stom-berg’s primary responsibility was to take care of the house. In this category fell the task of watering the plants, taking care of the dog and the cat. [Tonia Stomberg was encouraged to stay overnight at the Hu-bers’ house.]
4. That prior to Chazdon Lewellin’s death, Mr. Huber had on one occasion experienced the dog attempting to get into the front seat. As a result of this behavior, he usually restrained the dog in the back seat of the two vehicles he had by putting a seatbelt through the collar when traveling with the dog.
5. Tonia Stomberg was never aware, prior to the accident, that the dog had attempted to get into the front seat and, as a result, the Hubers usually strapped the dog into the back seat when traveling in any of their vehicles.
* ⅜ * * * *
8.On July 6, 1987, just prior to this occurrence, Tonia Dee Stomberg was driving her vehicle with the dog in the back seat. The dog attempted to get into the front seat by climbing between the seats and was “bugging her.” He put his head in Tonia’s face. While attempting to get the dog settled, the distraction caused by the dog resulted in her running off the road into the ditch and over Chaz-don Lewellin which impact caused his death.
9. Ms. Stomberg said the following in her statement: “I looked up, was going off the road and could not stop. I saw the boy lying in the ditch sorta toward the road. I could not stop and drove over him.”
10. There was no direct contact between the dog and Chazdon Lewel-lin.
11. The dog in question had a tendency to be frisky but never attacked or bit any person or showed propensities to do the same.
12. That Chazdon Lewellin’s injuries were incurred by the motor vehicle driven by Tonia Stomberg striking him.
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Both briefs mention that the Hubers’ dog was a six-month-old golden retriever.

The Hubers contend that even if the statute may apply to these facts, there is a dispute concerning intervening causation, leaving an issue of fact to be tried by a jury.

ISSUES

1. Did the trial court err in finding that Minn.Stat. § 347.22 imposes absolute liability on dog owners for injuries proximately caused by a dog when the dog interfered with and distracted the driver of a car, causing her to swerve off the road and fatally injure a child?

2. Is there a genuine issue of material fact concerning intervening causation, precluding a finding of proximate cause based on the stipulated facts?

DISCUSSION

On appeal from a summary judgment, this court determines only whether there are issues of material fact and whether the trial court erred in its application of the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). When reviewing the trial court’s applica[96]*96tion of the law to undisputed facts, this court gives no deference to the court below. See A.J. Chromy Construction Co. v. Commercial Mechanical Services, Inc., 260 N.W.2d 579, 582 (Minn.1977).

I

The facts having been stipulated, we first consider applicability of the dog owner’s liability statute. Minn.Stat. § 347.22 provides in part:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.

The “or injures” language in the statute necessarily encompasses injuries other than those caused by attack. Boitz v. Preblish, 405 N.W.2d 907, 910 (Minn.App.1987). Except for the defenses of provocation and unlawful conduct which are not shown by the evidence in the case, the owner of a dog is absolutely liable for a violation of Minn.Stat. § 347.22. Seim v. Garvalia, 306 N.W.2d 806, 812 (Minn.1981). In determining that section 347.22 provided for strict liability rather than establishing a standard for negligence, the supreme court stated:

The statute leaves the dog owner in the same position which the common law left the keeper of a wild animal; namely, with the strict liability of an insurer.

Lavalle v. Kaupp, 240 Minn. 360, 363, 61 N.W.2d 228, 230 (1953) (emphasis supplied). Therefore, if one chooses to keep a dog, the owner is, in the words of the Lavalle case, an insurer of injuries caused by the dog to a person just as is a keeper of wild animals.

The Hubers discuss several foreign cases regarding strict liability and whether an aggressive act of the dog toward the person injured is required. In view of the Lavalle case construing our statute, we think the question is whether the dog injured the person. We think the Hubers misinterpret the element of direct causation as applied in these cases.

Interpreting a statute almost identical to the Minnesota dog owner’s liability statute, the Illinois court of appeals found that where the evidence showed the driver of a car to have been injured when his car struck a dog, causing the car to go out of control and overturn, there was a triable issue under the statute as to “whether the action of the dog was the proximate cause of the injury.” Taylor v. Hull, 7 Ill.App.3d 218, 220, 287 N.E.2d 167, 168 (1972)1 (reversing the trial court’s summary judgment in favor of defendant). The Taylor court determined that the dog, which was “walking or trotting on or across the highway,” had performed an “overt act,” id., as opposed to being a passive force as was the dog in Bailey v. Bly, 87 Ill.App.2d 259, 261-62, 231 N.E.2d 8, 9 (1967) (finding no liability where the plaintiff tripped over a dog which was lying down). Id. Neither of these cases required that the dog’s overt act be directed toward the person injured.

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Related

Lewellin Ex Rel. Heirs of Lewellin v. Huber
465 N.W.2d 62 (Supreme Court of Minnesota, 1991)
Lewellin Ex Rel. Lewellin v. Huber
456 N.W.2d 94 (Court of Appeals of Minnesota, 1990)

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Bluebook (online)
456 N.W.2d 94, 1990 WL 66241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewellin-ex-rel-lewellin-v-huber-minnctapp-1990.