Kelsey v. Lint

322 Mich.App. 364

912 N.W.2d 862

Carolyn Sue KELSEY and David B. Kelsey, Plaintiffs-Appellants,

v.Nita LINT, Defendant-Appellee.

No. 336852

Court of Appeals of Michigan.

Submitted December 5, 2017, at Grand Rapids.

Decided December 14, 2017, 9:15 a.m.

Steven A. Hicks for plaintiffs.

Bosch Killman VanderWal, PC (by Kurt R. Killman ) for defendant.

Before: Markey, P.J., and Hoekstra and Ronayne Krause, JJ.

Per Curiam.

In this dog-bite case, plaintiffs,¹ Carolyn Kelsey and David Kelsey, appeal as of right the trial court’s order granting summary disposition to defendant, Nita Lint, and denying plaintiffs' motion for sanctions under MCR 2.114(E). Because the trial court erred by concluding that Kelsey was a trespasser as a matter of law and dismissing plaintiffs' dog-bite claims on this basis, we reverse the trial court's grant of summary disposition to Lint and remand for further proceedings. In addition, because the trial court failed to determine whether Lint's attorney conducted a reasonable inquiry into the facts that formed the basis for the documents he signed under MCR 2.114(D), we vacate the trial court's denial of plaintiffs' request for sanctions and remand for specific findings on this issue.

On August 31, 2013, Kelsey was bitten by Lint's dog while on Lint's property. Kelsey had attended a garage sale at Lint's house on August 30, 2013. She returned to Lint's property about 5:00 p.m. on August 31, 2013, after the sale had ended, to inquire about an item that had been for sale the previous day. When Kelsey exited her vehicle, Lint's dog ran at Kelsey from the back of the house and bit Kelsey's leg. Following this incident, plaintiffs filed the current lawsuit alleging (1) a statutory dog-bite claim under MCL 287.351, (2) a common-law dog-bite claim premised on the assertion that Lint knew of the dog's violent propensities and acted negligently by failing to properly control the dog, and (3) a claim for loss of consortium.

Lint moved for summary disposition under MCR 2.116(C)(8) and (10), asserting that plaintiffs' dog-bite claims must fail because, when Kelsey returned to the property after the yard sale ended, she was a trespasser on Lint's property. Lint contended that, as a trespasser, Kelsey was not lawfully on the property for purposes of MCL 287.351. Likewise, for purposes of Kelsey's common-law dog-bite claim, Lint maintained that her only obligation to a trespasser was to refrain from willful and wanton misconduct and that her ownership of a dog with no history of biting did not constitute willful or wanton misconduct.

Plaintiffs opposed Lint's motion for summary disposition, arguing that Kelsey was a licensee because, like the general public, Kelsey had an implied license to enter Lint's property and approach the house to knock on the front door. In opposing Lint's motion for summary disposition, plaintiffs also sought sanctions under MCR 2.114(E). Plaintiffs presented a recorded statement in which Lint admitted that her dog had previously bitten a mailman. On the basis of this statement, plaintiffs asserted that they were entitled to sanctions under MCR 2.114(E) because Lint or Lint's attorney signed documents that were not well grounded in fact insofar as the documents indicated that Lint had no knowledge of her dog biting anyone before Kelsey.

Following a hearing, the trial court granted summary disposition to Lint. The trial court reasoned that Kelsey was an invitee when she attended Lint's garage sale, but the trial court concluded as a matter of law that Kelsey was a trespasser when she returned to Lint's property after the sale. In light of the trial court’s conclusion that Kelsey was a trespasser, the trial court dismissed plaintiffs' statutory and common-law dog-bite claims. The trial court also denied plaintiffs' request for sanctions under MCR 2.114(E). Plaintiffs filed a motion for reconsideration, which the trial court denied. Plaintiffs now appeal as of right.

I. KELSEY'S STATUS ON LINT'S PROPERTY

On appeal, plaintiffs first argue that the trial court erred by dismissing their statutory and common-law dog-bite claims on the basis that Kelsey was trespassing. Specifically, plaintiffs contend that everyone, including Kelsey, has an implied license to enter property and knock on the front door. According to plaintiffs, in the absence of a fence or "no trespassing" signs, Lint acquiesced in the general public's customary use of property. While there was a "no soliciting" sign on Lint's door, plaintiffs maintain that this does not render Kelsey a trespasser because she was not soliciting and, in any event, the dog attacked Kelsey before she had an opportunity to observe the sign. With regard to the garage sale, plaintiffs argue that the sale did not alter the general implied license that exists to enter property. Plaintiffs contend that, if anything, Lint's practices showed that she had acquiesced in allowing people to return to her property after a garage sale to take a second look at items. In these circumstances, plaintiffs assert that the trial court erred by concluding as a matter of law that Kelsey was a trespasser.

"This Court reviews a trial court’s decision on a motion for summary disposition de novo." Barnes v. Farmers Ins. Exch. , 308 Mich. App. 1, 5, 862 N.W.2d 681 (2014). Lint moved for summary disposition under MCR 2.116(C)(8) and (10). However, the parties and the trial court relied on evidence outside the pleadings, meaning that Lint's motion is properly reviewed under MCR 2.116(C)(10). Sisk–Rathburn v. Farm Bureau Gen. Ins. Co. of Mich. , 279 Mich. App. 425, 427, 760 N.W.2d 878 (2008). "When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all the evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact." Id. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp. , 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

Plaintiffs brought both a statutory dog-bite claim and a common-law, negligence-based dog-bite claim. We begin with plaintiffs' statutory claim. The dog-bite statute is MCL 287.351(1), which states:

If a dog bites a person, without provocation while the person is on public property, or lawfully on private property, including the property of the owner of the dog, the owner of the dog shall be liable for any damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.

The statute imposes " ‘almost absolute liability’ " on the dog owner, except when the dog bites after being provoked. Koivisto v. Davis , 277 Mich. App. 492, 496, 745 N.W.2d 824 (2008) (citation omitted). However, to succeed on a claim under MCL 287.351(1), the plaintiff must be on public property or "lawfully on private property." See Cox v. Hayes , 34 Mich. App. 527, 531, 192 N.W.2d 68 (1971).

A person is lawfully on the private property of the owner of the dog within the meaning of this act if the person is on the owner’s property in the performance of any duty imposed upon him or her by the laws of this state or by the laws or postal regulations of the United States, or if the person is on the owner's property as an invitee or licensee of the person lawfully in possession of the property unless said person has gained lawful entry upon the premises for the purpose of an unlawful or criminal act. [ MCL 287.351(2) (emphasis added).]

Licensees and invitees—in addition to trespassers—are common-law categories for persons who enter upon the land of another. Stitt v. Holland Abundant Life Fellowship , 462 Mich. 591, 596, 614 N.W.2d 88 (2000). Under MCL 287.351(2), invitees and licensees are "lawfully" on the property, but a trespasser cannot maintain a statutory dog-bite claim. See Alvin v. Simpson , 195 Mich. App. 418, 421, 491 N.W.2d 604 (1992).

In this case, the parties focus their arguments on whether Kelsey was a licensee or a trespasser when she returned to Lint's property. "A ‘trespasser’ is a person who enters upon another’s land, without the landowner’s consent." Stitt , 462 Mich. at 596, 614 N.W.2d 88. In comparison, "[a] ‘licensee’ is a person who is privileged to enter the land of another by virtue of the possessor’s consent." Id. Consent to enter may be either express or implied. Pippin v. Atallah , 245 Mich. App. 136, 142, 626 N.W.2d 911 (2001). "Permission may be implied where the owner acquiesces in the known, customary use of property by the public." Alvin , 195 Mich. App. at 420, 491 N.W.2d 604.

Plaintiffs maintain that Kelsey had an implied license to enter Lint's property. In considering whether Kelsey had implied consent to enter Lint's property, we begin with the proposition that in the United States, and in Michigan in particular, given the established habits in this country, there is an implied license that permits ordinary persons to enter property, approach a home, and knock. See Florida v. Jardines , 569 U.S. 1, 8, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ; Kentucky v. King , 563 U.S. 452, 469, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ; People v. Frederick , 500 Mich. 228, 234–235, 895 N.W.2d 541 (2017). More fully, the United States Supreme Court has explained this implied license as follows:

"A license may be implied from the habits of the country," notwithstanding the "strict rule of the English common law as to entry upon a close." McKee v. Gratz, 260 U.S. 127, 136[, 43 S.Ct. 16, 67 L.Ed. 167] (1922) (Holmes, J.). We have accordingly recognized that "the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds." Breard v. Alexandria, 341 U.S. 622, 626, [

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