NO. 94-277
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
HUGHIE F. STROOP,
Plaintiff, Respondent
and Cross-Appellant,
v. JUNO1 1995
JAMES C. DAY and COLLEEN M. DAY, .f>J(
CLGW IT: COURi
E6AWT~OP IVISN'I‘ANA
Defendants, Appellants ,:<; '~ ~'
and Cross-Respondents.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Lon T. Holden, Jardine, Stephenson, Blewett
& Weaver, Great Falls, Montana
For Respondent:
Jon S. McCarty, Scott & Tokerud, Great Falls,
Montana
Submitted on Briefs: March 10, 1995
Decided: June 1, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Hughie E. Stroop filed a complaint in the Eighth Judicial
District Court, Cascade County, against James C. Day and Colleen M.
Day (the Days), alleging that they were liable for damages he
sustained when he was bitten by their dog. Stroop's complaint
alleged negligence and violation of § 27-l-715, MCA. Following
trial, the jury found that the Days were not negligent nor had they
violated 5 27-I-715, MCA. Stroop moved for a new trial on his
statutory claim. The District Court granted his motion. The Days
appeal the decision of the District Court granting Stroop's motion
for a new trial. Stroop cross-appeals the District Court's denial
of his motion in limine for an order ruling that contributory
negligence does not apply to the liability of defendants under
5 27-l-715, MCA. We affirm in part and reverse in part.
The issues are:
1. Did the District Court err in granting Stroop's motion for
a new trial?
2. Did the District Court err in denying Stroop's motion in
limine for an order ruling that contributory negligence does not
apply to the liability of defendants under § 27-l-715, MCA?
Stroop and the Days lived across an alley from one another in
Great Falls, Montana. On May 19, 1990, Stroop was working in his
backyard. He observed James Day in his backyard. Stroop testified
that he crossed the alley and approached the Days' residence to
tell Mr. Day about a suspicious looking vehicle he had seen near
the Days' house on the evening of a recent robbery.
The Days' property was separated from the public alley by a
"picket" type fence approximately forty-eight inches high. stroop
stood in the alley next to the Days' fence. As Day and Stroop
conversed, Stroop leaned on the fence, rested his arms on the top
horizontal cross-board and extended his hands and forearms into the
Days' property. The Days' dog, Stogie, ran at Stroop in an
aggressive manner. Stroop pulled his hands back from the Days'
property.
Day testified that, after Stogie ran at Stroop, he cautioned
Stroop about placing his hands over the fence. Stroop denied
receiving any such warning.
Day and Stroop continued their conversation for several
minutes. Sometime during their discussion, Stroop again leaned
against the Days' fence, placing his hands and forearms into the
Days' property. When Stroop extended his hands into the Days'
property a second time, Stogie jumped up and bit Stroop's right
hand. The parties dispute the severity of the bite and the extent
of the damages suffered.
Stroop filed a complaint against the Days in the Eighth
Judicial District Court, Cascade County. Stroop alleged negligence
on the part of the Days as well as violation of § 27-l-715, MCA.
Following trial, a jury found that the Days were not negligent nor
had they violated § 27-l-715, MCA. Stroop moved for a new trial on
his statutory claim. The District Court granted Stroop's motion
for a new trial, determining that there was insufficient evidence
for the jury to conclude that the Days had not violated § 27-I-715,
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MCA. The Days appeal the District Court's granting of a new trial.
stroop cross-appeals the District Court's determination that
contributory negligence is applicable to the statutory claim.
Issue 1
Did the District Court err in granting Stroop's motion for a
new trial?
Pursuant to § 25-11-102, MCA, the District Court determined
that there was insufficient evidence to justify the jury's verdict
that the Days had not violated 5 27-l-715, MCA. We review a
district court's decision to grant a new trial to determine whether
there was a manifest abuse of discretion. Stanhope V. Lawrence
(1990), 241 Mont. 468, 787 P.2d 1226. We review the evidence in a
light most favorable to the prevailing party to determine whether
there was sufficient evidence that reasonable minds might accept as
adequate to support a conclusion. Gass v. Hilson 119901, 240 Mont.
459, 784 P.2d 931; Barrett v. ASARCO (1990), 245 Mont. 196, 799
P.2d 1078.
Section 27-l-715, MCA, reads:
(1) The owner of any dog which shall without
provocation bite any person while such person is on or in
a public place or lawfullv on or in a urivate place,
including the property of the owner of such dos. located
within an incorporated city or town 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.
(2) A person is lawfully upon the private property
of such owner within the meaning of this section when he
is on such property in the performance of any duty
imposed upon him by the laws of this state or by the laws
or postal regulations of the United States of America or
when he is on such propertv as an invitee or licensee Of
4
the person lawfullv in possession of the propertv.
[Emphasis added.]
The Days alleged that: 1) Stroop provoked Stogie prior to the
incident or 2) Stroop was not lawfully on or in the Days' private
property at the time of the incident. They argue that if there was
sufficient evidence of either of these statutory defenses, the
District Court abused its discretion by granting a new trial. We
address these arguments in turn.
The Days claim that there were three acts of provocation which
led to the dog bite incident. First, approximately four to six
weeks before the incident, Stroop chased Stogie out of Stroop's
yard with a steel fence post. Second, on the day of the dog bite,
Stroop extended his hands and forearms over the Days' fence and
into "Stogie's turf." This led to Stogie's initial aggressive
behavior toward Stroop. Finally, immediately before Stogie bit
Stroop, Stroop again extended his hands and forearms over the Days'
fence and into Stogie's turf.
The Days argue that, absent a defining statute or clear
legislative intent, this Court should adopt the plain meaning of
the term "provocation." The Days suggest several dictionary
definitions of provocation which include any act that aroused,
stimulated or incited a dog to bite an individual. Pursuant to
this interpretation of provocation, the Days claim that Stroop's
three acts provoked Stogie into biting.
Stroop argued, and the District Court agreed, that these acts
were insufficient, as a matter of law, to satisfy the provocation
defense in § 27-l-715, MCA. Stroop claims that under the Days'
5
interpretation of "provocation," any act or occurrence that caused
a dog to bite an individual would become a defense under § 27-L
715, MCA. Thus, only a completely spontaneous attack would violate
this section. The "without provocation" defense would thus
overshadow the law and would render the statute virtually useless.
See Robinson v. Meadows (Ill. Ct. App. 1990), 561 N.E.2d 111.
Stroop suggests that, to further the reasonable intent of the
statute, provocation must be more narrowly defined. He argues that
a more appropriate definition of provocation would require the
victim to intentionally tease, torment or torture the dog.
After reviewing case law from various jurisdictions, we do not
believe that either of the parties' proposed definitions are
entirely correct, but rather this issue must be analyzed on a case-
by-case basis. Clearly not every occurrence that stimulates a dog
to bite an individual should be a defense under § 27-l-715, MCA.
Conversely, provocation should not be required to rise to the level
of intentional torture to be a valid defense.
In Robinson, the Illinois Court of Appeals addressed this
particular concern. In its discussion, the court stated:
Where, as here, the terms of a statute are not specifi-
cally defined, the words must be given their ordinary and
popularly understood meanings, but the words must also be
construed with reference to the purposes and objectives
of the statute. [Citation omitted.1 Where literal
enforcement of a statute will result in great injustice
which was not contemplated, we will construe the statute
to give effect to what must have been reasonably intended
by the legislature. [Citation omitted.1
As commonly understood, provocation means an act or
process of provoking, stimulation or excitement.
These definitions are so expansive, however, that, if
taken literally, [the Illinois dog-bite statute1 could be
6
interpreted to mean that provocation exists whenever any
external stimulus has precipitated the attack or injury
by an animal, i.e., whenever the animal's actions are not
completely spontaneous. . [Wle believe that so
literal an interpretation would render the statute
largely meaningless, and yield unjust and absurd results.
Robinson, 561 N.E.Zd at 114. The court went on to conclude that
the determination of what constituted provocation has generally
"proceeded on a case-by-case basis." Robinson, 561 N.E.2d at
115. Under such an analysis, provocation may include unintentional
acts, provided that the attack that followed was not grossly out of
proportion to the act of provocation. Wade v. Rich (Ill. Ct. App.
1993), 618 N.E.2d 1314.
We do not dispute the Days' claim that a dog is capable of
remembering specific instances from its past. We nevertheless
conclude, as a matter of law, that Stroop's act of chasing Stogie
with a fence post four to six weeks prior to being bitten was not
provocation under § 27-1-715, MCA. An incident so remote in time
cannot be considered provocation under the terms of this statute.
Similarly, Stroop's extending his hands and forearms into the
Days' property was not provocation. There was no testimony that
Stroop thrust his hands toward the dog or made any quick or
threatening gestures. As discussed below, Stroop's hands were
lawfully on the Days' property. Mere presence on the property of
another does not amount to provocation. See Smith v. Pitchford
(Ill. Ct. App. 1991), 579 N.E.2d 24. Conduct such as Stroop
resting his arms on the fence and allowing his hands and forearms
to dangle over the Days' property cannot be considered provocation
under any reasonable interpretation of that term.
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The Days' second argument is that Stroop was not lawfully on
or in the Days' property at the time of the bite. The Days argue
that, while Stroop may have initially been lawfully on the Days'
property, Day's warning Stroop to remove his hands from over the
fence and Stogie's aggressive behavior converted Stroop's permis-
sive presence to nonpermissive presence. The Days claim that,
because Stroop was a "trespasser" at the time of the incident, he
is barred from recovery under § 27-I-715, MCA.
Stroop argues that he was not a trespasser at the time of the
incident. Stroop claims that he was standing in a public alley,
with only his hands over the Days' property. He claims any
encroachment onto the Days' private property was made as either an
invitee or a licensee. Therefore, he was in a public place or
lawfully in a private place pursuant to the terms of § 27-l-715,
MCA.
The jury was instructed as follows:
One who enters upon the premises of another at the
express or implied invitation of the owner of the
premises is called in law an invitee. An invitation is
implied where there is some common interest or mutual
advantage gained by the property owner as a result of the
individual's presence.
One who enters upon the premises of another for his
own purpose, but with the permission or sufferance of the
owner, is called in law a licensee. A license is implied
where the object or purpose of the individual's presence
upon the property is the pleasure, convenience or benefit
of the individual.
State ex. rel. Burlington Northern, Inc. v. District Court (19721,
159 Mont. 295, 496 P.2d 1152. The jury was properly instructed
8
concerning Stroop's status as either an invitee or a licensee. The
Days presented no facts by which the jury could have concluded that
Stroop was not either a licensee or an invitee at the time of the
incident. Any admonishment that Stroop should remove his hands
from the fence or Stogie's display of aggressive behavior in the
backyard did not revoke Stroop's status as an invitee or licensee.
There was no evidence that Day revoked Stroop's status as a
licensee or invitee. By ignoring Day's warning and Stogie's
aggressive behavior, Stroop has not barred his claim.
We conclude that the District Court did not err in granting
Stroop a new trial. Insufficient evidence was presented at trial
that Stroop provoked Stogie. Likewise, there was insufficient
evidence that Stroop was not in a public place or lawfully in a
private place at the time of the incident. Therefore, there was
not a manifest abuse of discretion by the District Court.
Issue 2
Did the District Court err in denying Stroop's motion in
limine for an order ruling that contributory negligence does not
apply to the liability of defendants under § 27-l-715, MCA?
The Days argue that this issue is not ripe for decision by
this Court because the jury did not reach the issue of contributory
negligence at the trial below. Alternatively, the Days claim that
contributory negligence is applicable because Stroop pled his
statutory claim as negligence per se. Therefore, the plaintiff's
negligence must be compared to the defendants' negligence to
apportion fault.
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Stroop argues that the District Court erred by denying his
motion in limine for an order ruling that contributory negligence
does not apply to the liability of the defendants under § 27-l-715,
MCA. Stroop claims that g 27-l-715, MCA, imposes strict liability
on dog owners. He argues that liability is therefore limited only
by the enumerated defenses provided by that section. stroop
insists that, because he did not provoke Stogie and was lawfully
upon the premises, no other conduct may be considered to mitigate
the Days' liability.
We agree with Stroop that § 27-l-715, MCA, imposes strict
liability on dog owners. See Seim v. Garavalia (Minn. 19811, 306
N.W.2d 806, 810 (determining that a similar statute imposed strict
liability rather than negligence per se). There is a clear split
of authority concerning whether the defenses of contributory or
comparative negligence should be applicable to strict liability
dog-bite statutes. Many jurisdictions have determined that
defendants are limited to the defenses enumerated in the statutes,
namely that the plaintiff provoked the dog or the plaintiff was a
trespasser at the time of the incident. See, e.g., Quellos v.
Quellos (Ohio Ct. App. 19941, 643 N.E.2d 1173; Massey v. Colaric
(Ariz. 1986), 725 P.Zd 1099; -SeimI 306 N.W.Zd at 811-12; Nicholes
v. Lorenz (Mich. 1976), 237 N.W.2d 468.
However, other jurisdictions have determined that the defenses
of contributory negligence, comparative negligence or comparative
fault are consistent with their strict liability dog-bite statutes.
See, e.g., Hayes v. McFarland (La. Ct. App. 19881, 535 So.2d 568;
10
Howard v. Allstate Insurance Co. (La. 1988), 520 So.2d 715; Ambort
v. Nowlin (Ark. 19861, 709 S.W.2d 407; Budai v. Teague (N. J.
Super.L. 1986), 515 A.2d 822.
After reviewing these cases and the applicable statutory
language, we hold that contributory negligence is not a defense to
a claim brought under § 27-l-715, MCA. As previously stated, the
only defenses provided within 5 27-I-715, MCA, are that the dog was
provoked or that the defendant was a trespasser. In Massev, the
Arizona Supreme Court stated:
A.R.S. § 24-378 permits a person injured by a dog while
at large to recover simply by proving that the statute
has been violated. If the elements of the statute are
satisfied, the legislature has decided to impose liabili-
ty without fault. The only defense provided is provoca-
tion, A.R.S. § 24-523, with the common law defenses of
contributory negligence and assumption of risk supersed-
ed.
Massev, 725 P.2d at 1100-01.
We find the reasoning of the Massey court persuasive. Section
27-l-715, MCA, provides that dog owners are liable for damages
caused by their dogs, regardless of the owners' negligence. The
statute lists two defenses. If the victim can establish that he or
she was bitten by a dog and the dog's owner is unable to establish
either of the enumerated defenses, the owner is liable. Ideas of
comparative or contributory negligence are inapplicable under such
a strict liability scheme.
In sum, we conclude that the District Court did not abuse its
discretion in granting a new trial. However, we conclude that the
District Court erred in denying Stroop's motion in limine for a
11
ruling that contributory negligence does not apply to a claim
brought under § 27-l-715, MCA.
We therefore affirm in part and reverse in part the decision
of the District Court and remand for further proceedings consistent
with this opinion.
(/.A$?!_
+ Chief Justice
I
We concur:
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