A recent Wisconsin Court of Appeals decision has been recommended for publication that will assist landlords in defending against any claims filed by a third party that was bitten by a tenant’s dog.

The case of Ladewig v. Tremmel, (2010AP1925) involved a claim for negligence against two landlords by a neighborhood boy that was bitten by the landlords’ tenant’s pit bull.

The Court of Appeals was reviewing the trial court decision to dismiss the plaintiffs’ claims against the landlords on a motion for summary judgment.  A motion for summary judgment is filed when a party believes that the court is able to make a decision as a matter of law (without the need for a trial) because no material facts are in dispute by the parties, so the court must merely apply the law to the undisputed facts.

The general liability rule in Wisconsin, is based on public policy grounds, and states that a landlord is not liable for injuries caused by a tenant’s dog, unless the landlord is an owner or a keeper of that dog.  This general rule was established in the seminal case of Smaxwell v. Bayard, 2004 WI 101, 274 Wis.2d 278, 682 N.W.2d 923.

The plaintiff in this case argued that the general liability rule should not apply to these landlords because these landlords voluntarily assumed a duty to his client, because their lease included a provision which prohibited a tenant from keeping “vicious” dogs on the leased property.

Plaintiffs argued that the landlords in this case assumed a duty which they otherwise did not have, by including a lease provision prohibiting a tenant from keeping any vicious dogs on the premises, and as such they were negligent when they did not enforce this provision against the tenants, thus resulting in the plaintiff’s injuries.

It should be noted that in the case of Malone v. Fons, 217 Wis. 2d 746, 580 N.W.2d 697 (Ct. App. 1998) the Wisconsin Court of Appeals had previously held that a landlord’s alleged knowledge that a tenant was keeping a dog with a history of bad behavior was not sufficient to create liability on the landlord even though the landlord had a “no pets” provision In his lease.

Essentially, the plaintiffs were arguing that this case was an exception to the general rule of non-liability by a landlord set forth in Smaxwell, and since Smaxwell does not apply, the landlords should be found liable for the plaintiff’s injuries.

The Wisconsin Court of Appeals disagreed with the plaintiffs’ argument and said that there was no need to even determine whether or not the landlords assumed a duty of care to the plaintiff which they otherwise did not have, because such a determination was irrelevant under Smaxwell.

It was determined that the holding in Smaxwell applied to the facts in this case as well, and since there was no evidence that the landlords were owners or keepers of the dog that injured the visiting child, that the landlords were not liable, regardless.

The Court explained that the Smaxwell case “explicitly forecloses landlord liability on a broad basis, regardless of a plaintiff’s theory of a landlord’s duty of care, unless the landlord has a role, separate from that of a landlord, which involves exercising control or custody over the dog so as to qualify as an owner or keeper of the dog.”

Here, the Court of Appeals held that there was nothing about the landlords’ alleged non-enforcement of the “no vicious dogs” lease provision that “logically transformed the landlords into ‘owners and keepers’ of the dog.

This is a sound decision and in keeping with prior Wisconsin law.  A landlord will not be held liable for the injuries of a tenant’s dog to a third party, unless the injured party can demonstrate that the landlord “acted in the additional role of owner or keeper of the dog and exercised dominion and control over the dog.”

The Court of Appeals also echoed the Smaxwell decision by adding that recovery against a landlord would not place liability where it belongs, because it is the tenant, not the landlord, who has direct control over the dog and that it is sound policy to ensure that liability is placed upon the person with whom it belongs – the owner of the dog – rather than promoting the practice of seeking out the defendant with the most affluence – which often happens to be the landlord.

 

 

 

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