dissenting.
I respectfully dissent. The majority remands to the trial court just on the issue of intervening cause. I do not find that Minn. Stat. § 347.22 (1988), the “dog bite” statute, is applicable at all to this set of facts, and I would remand for a simple common law negligence action on all aspects of liability.
I find the legislative purpose of Minn. Stat. § 347.22 is aimed at attacks or other direct injuries caused by dogs. The only Minnesota “non-bite case” applying this statute is Boitz v. Preblish, 405 N.W.2d 907 (Minn.Ct.App.1987).
The plaintiff in Boitz was injured when a dog bumped into the back of plaintiffs legs, causing him to lose his balance and fall. On those facts, the trial court did not impose strict liability on the dog’s owner, finding that the statute was meant to cover only “vicious” or dangerous attacks by dogs, and decided that an accidental bumping, although direct contact, was not covered. Our holding in Boitz was limited to a finding
that injuries inflicted by a dog outside the scope of a vicious attack are not, as a matter of law, excluded from coverage under the statute. Appellants are entitled to a trial under section 347.22.
Id. at 910. Boitz does not stand for the proposition that whenever a dog can be placed within a Palsgraf1 chain of causation that section 347.22 automatically controls. I feel the majority’s conclusion to be that broad an extension.
It is true that in Boitz, we did not restrict application of section 347.22 to cases where there were “vicious” attacks. But the facts in Boitz did show a direct contact. There was a direct (although concededly not vicious) bumping of the plaintiff by the dog and direct causation between the contact, the plaintiff’s fall to the ground, and his resulting injury. In Boitz, we merely did not deem as controlling the dog’s “intent,” (the determination of which would lead to a morass of subjectivity) and thus found the statute covered both “playful” and “vicious” bites and other attacks or injuries.
Although other jurisdictions with somewhat similar laws have gone in varying directions, I find nothing in Minnesota directly resembling this fact situation, and it appears to be a case of first impression. Minnesota’s legislative and case law histo*99ry support the notion that this strict liability statute was passed to remove the need for persons injured by a biting dog to show, somehow, that the dog had dangerous propensities, and the owner knew or should have known of that propensity. The most common way to show that a pet dog had a dangerous propensity is to show that it had bitten someone before. Thus the old common law phrase of “every dog gets one free bite” worked its way into the legal history of handling pet dogs.
The statute in issue here was aimed specifically at removing this burden from plaintiffs and simplifying their road to recovery when a dog bit or otherwise attacked or injured them. I do not find the unusual fact situation which we have here falls within the scope of the problem Minnesota’s “dog bite” statute was meant to cure. I do not find any evil which a common law negligence lawsuit against the animal’s owner cannot cure.
It just does not seem to me that the frisky activities of a dog in a car come under the ambit of “if a dog * * * attacks or injures any person * * I would hold that respondents have the right to pursue a common law negligence action against the dog owners just as they do against the driver and owner of the car. They may or may not prevail. It is easily within the realm of possibility that, based on these facts, a jury could find some comparative fault on the part of the dog owners as well as the driver of the vehicle. On the other hand, I find it within the realm of possibility that a jury could find liability only on the part of the driver of the vehicle, or even only on the part of the dog owners.
I dissent and would restrict respondents to a common law negligence action against appellant dog owners.
. In Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928) employees of the defendant railroad company, attempting to assist a running passenger in boarding a train, knocked a package from the arms of the passenger and it fell on the rails. The package, containing fireworks, exploded. As a result of the explosion some scales were overturned many feet away on the platform which fell on the plaintiff and injured her.
A Palsgraf chain refers to negligence cases in which a series of independent events acting together, like a collapse of a long line of dominos, produce an injury, and the question becomes whether a tortfeasor in the front of the line stands legally liable to an injured party a few events removed. There are no hard and fast rules. Sometimes legal causation and thus liability is found, sometimes it is not. In Palsgraf Judge Cardozo held there was no negligence toward the plaintiff because no harm to her could have possibly been anticipated. The only harm foreseeable by the railroad employees was to the package or, at most, to the passenger boarding the train.