PALLONI
v.
SMITH
Docket No. 89066.
Michigan Court of Appeals.
Decided March 22, 1988.Rifkin & Kingsley, P.C. (by David K. Whipple), for plaintiff.
Mitchell & Leon (by Harold B. Leon), and MacArthur, Cheatham, Acker & Smith, P.C. (by James G. Gross), of Counsel, for defendant.
Before: CYNAR, P.J., and WEAVER and M.H. CHERRY,[*] JJ.
PER CURIAM.
Peggy Palloni, as next friend of her minor son, Timothy Palloni, brought suit against *395 Steven Smith under Michigan's dog-bite statute, MCL 287.351; MSA 12.544, as a result of events which occurred on June 12, 1981. On that date Timothy, who was two years old at the time, was walking hand in hand with plaintiff from his home to a neighbor's home, where his sister was playing with friends. The defendant's home was four houses from the plaintiff's and next door to the yard in which the children were playing. While walking, plaintiff observed the defendant's cocker spaniel walking loose in the defendant's yard without a leash and barking at the girls next door.
Plaintiff also saw one of the girls with whom her daughter was playing teasing the dog by standing in the defendant's driveway and stamping her feet at the dog. Plaintiff warned the girl to move away because the dog might bite. Eventually the girl stepped away and the dog sat down on the grass in the defendant's yard, near the driveway and close to the public sidewalk. While plaintiff was talking to her daughter, Timothy let go of plaintiff's hand, walked over to the dog, bent down, and attempted to hug it. Timothy had not actually touched the dog when it bit him on the face, causing injuries which required extensive medical care.
The trial court instructed the jury that, as no other elements of the dog bite statute had been contested, the sole factual issue was whether the attack was without provocation and further instructed the jury that plaintiff had the burden of proof on the question of provocation. Plaintiff's attorney conceded that, if the jury found the attempted hug to be provocative, plaintiff could recover no damages. After the jury returned a verdict of no cause of action, the trial judge granted plaintiff's motion for a new trial on the ground that the verdict was against the great weight of the evidence. From that opinion and order the *396 defendant has been granted leave to appeal to this Court.
It is within the sound discretion of the trial court to grant or deny a motion for a new trial; however, a court may not substitute its judgment for that of the finders of fact, and a jury's verdict should not be set aside where there is competent evidence to support it. Bell v Merritt, 118 Mich. App. 414, 422; 325 NW2d 443 (1982), lv den 417 Mich. 954 (1983). Here, we find there was competent evidence to support the jury's verdict.
This case was brought under MCL 287.352; MSA 12.544:
The owner of any dogs which shall without provocation bite any person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.
Here, the jury clearly must have found there to have been provocation. For us to determine that there was competent evidence to sustain that finding, we must also find that a person who does not intend to provoke a dog nevertheless can do things which are sufficiently provocative to relieve a dog owner of liability under the statute.
In Nicholes v Lorenz, 396 Mich. 53; 237 NW2d 468 (1976), reh den 396 Mich. 976 (1976), the Supreme Court noted that the question for the jury, where it was agreed that the defendant's dog had bitten the plaintiff's daughter after the girl had stepped on the dog's tail, was whether that act constituted provocation under the statute. Nicholes, supra at 60. The Court also noted that, in enacting a statute which imposed almost absolute *397 liability for dog owners, "the Legislature excepted the consequences which might reasonably result from provoking an animal." Nicholes, supra at 59-60.
While no Michigan appellate decisions have focused expressly on the dog-bite victim's intent, the appellate courts of other jurisdictions have. The Illinois appellate court, in Nelson v Lewis, 36 Ill App 3d 130; 344 NE2d 268 (1976), was confronted with a dog-bite statute similar to Michigan's and held that an unintentional act can constitute provocation. In that case, the court found that a 2 1/2-year-old girl's stepping on the tail of a normally peaceful dog was sufficient provocation to preclude recovery under the statute, despite the fact that the provocation was not intentional. Nelson, supra at 133. That court also emphasized that the young girl's tender age did not relieve her of the responsibility for the provoking act. Id.
Four years later the Illinois appellate court followed the rule it had established in the Nelson case. In Stehl v Dose, 83 Ill App 3d 440; 403 NE2d 1301 (1980), it decided that the question of provocation under the dog-bite statute must focus on whether the plaintiff's actions would be provocative to the dog. Going on, the Illinois court said: "However, whether plaintiff's conduct amounted to provocation is not clear. Reasonable men would differ and accordingly, we view this issue as one especially suited to jury determination." Stehl, supra at 443. Because it concluded that the evidence could support a finding either way on the issue of provocation, the court held that the verdict for the defendant did not go against the great weight of the evidence. Id.
A similar pattern of decisions has emerged in the Arizona appellate courts. In Toney v Bouthillier, 129 Ariz 402; 631 P2d 557 (Ariz App, 1981), *398 the Arizona Court of Appeals determined that the dog-bite statute of that state imposed liability on dog owners regardless of the owner's fault. "Consequently," the court concluded, "we believe that the corresponding statutory defense (of provocation) must be construed without reference to fault of the individual committing the provocation." Toney, supra at 405. As had the Illinois court, the Arizona court also found that the actions of children of tender years may be sufficient provocation under the statute.
The Arizona Court of Appeals adhered to its Toney decision in James v Cox, 130 Ariz 152, 156; 634 P2d 964 (Ariz App, 1981), when it ruled that a trial court did not err by instructing a jury that unintentional provocation is a defense under the dog-bite statute. That court cited the Michigan Supreme Court's decision in Nicholes and, while noting that the case did not specifically involve an unintentional provocation defense, said: "Thus, the court implied that provocation depends on whether the actions caused the animal to react rather than on the intent of the actor." James, supra at 156, n 4.
In the present case, the trial court erred in setting aside the jury's verdict, since there was competent evidence to support it. Although the plaintiff claims that Timothy meant only to hug the dog, an unintentional act may constitute provocation within the meaning of Michigan's dog-bite statute. Expressed differently, since that statute imposes liability on dog owners without regard to fault, the defense of provocation must be construed without concern for fault on the part of the person committing the provocation. The focus must be on the injured party's act, not on his intent, and whether that act was sufficient to provoke the *399 dog's attack. A provocation defense should not be precluded simply because the plaintiff did not intend to provoke the dog.
Consistent with such a conclusion, the injured party's age is not an impediment to a defense of provocation under the dog-bite statute. The actions of a child of tender years may constitute provocation under this act.
Based upon the evidence presented in this case, reasonable minds could have differed whether the defendant's dog had been provoked by Timothy. Because the evidence, based upon the legal analysis above, could have supported a finding either way on the issue of provocation, the jury's verdict was not against the great weight of the evidence.
The trial court's order for a new trial is reversed and the jury's verdict of no cause of action is reinstated.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.