For many Wisconsin residents, the image of a happy home may include the family dog resting in the yard. However, owning a dog is a serious undertaking and can have potential tragic consequences if an owner behaves irresponsibly. A dog bite may bring injury, personal liability and difficulties in finding homeowner’s insurance.
Legal liability
The Wisconsin Supreme Court held in Smaxwell v. Bayard (2004 WI 101), that landowners and landlords are liable under common law for injuries caused by dogs only if the landowner or landlord is also the owner or keeper of the dog which caused the injury. In the Smaxwell case, one of the landlord’s tenants was raising dogs, including some wolf hybrids, and the owner knew there had been many complaints to the sheriff’s department regarding the tenant’s dogs.
A three-year-old daughter of the landlord’s visiting friend was seriously injured when three of the tenant’s 70-pound wolf hybrid dogs attacked the child while the adults went inside to make coffee. The dogs were running free because the tenant had not latched the kennel. The girl’s parents sued the landlord and the tenant.
The trial court ruled that the law does not hold property owners or landlords liable for injuries caused by dogs they do not own, even when on their property. Upon appeal, the Court of Appeals held that only the owner or keeper of an animal is liable for common-law negligence.
The Wisconsin Supreme Court found that a property owner owes a duty of ordinary care to anyone who is legally on his or her property, a duty that is not necessarily limited to physical defects or property conditions. However, the Court concluded that sound public policy required that property owners and landlords should only be liable for common law negligence when the property owner is also the owner or keeper of the dog. It would make no sense, the Court observed, to make property owners responsible if they did not have control or custody of the dog.
In Wisconsin, owner liability for dog bites and injuries is primarily governed by Wis. Stat. §174.02. Under this statute, a dog owner is liable for the full amount of damages and a forfeiture of $50 – $500 in the first instance of a dog causing injuries. The owner is liable for double damages for a second injury caused by a dog and a forfeiture of $200 – $1,000 if the owner knew of the previous injury caused by the dog.
Finding homeowner’s insurance
This double damage provision is partly responsible for the reluctance of some insurers to provide homeowner’s coverage for persons with dogs, particularly dogs that have caused an injury before and certain breeds such as Rottweilers or German Shepherds. Not all insurers reject a policy if there is a canine family member, but there likely may be increased scrutiny. Although insurer caution when it comes to dogs is a nation-wide trend - dog bites account for around one-third of all liability claims on homeowner’s insurance policies - some insurance companies believe insurer reluctance to cover dog owners is worse in Wisconsin, which has many rural areas and a lot of dogs. When combined with the prospect of paying double damages, insurance underwriters can become very nervous. They pay careful attention to information such as a report in 2000 from the Centers for Disease Control that listed Pit Bulls, Rottweilers, German Shepherds, Huskies, Alaskan Malamutes, Doberman Pinschers, Chows, Great Danes, St. Bernards and Akitas as the breeds of dogs most likely to attack.
REALTOR® practice tip: REALTORS® should warn homebuyers that they may need to shop around for homeowner’s insurance if the new home of their dreams includes a German Shepherd in the backyard.
For more information about homeowner’s insurance issues, read Legal Update 03.04 at www.wra.org/LU0304.