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Bailey v. Morris - 323 N.W.2d 785 (Minn. 1982)

Rule:

To constitute a defense of provocation, a plaintiff's provocation must be voluntary, thus inviting or inducing an injury.

Facts:

A number of children, including the minor, asked to see the owners' puppies. One owner testified that she warned the children beforehand. Two of the owners' children testified that the dog was growling as the minor approached. One owner testified that she stated that the children should not see the puppies, and one of that owner's children repeated her mother's warning. The dog bit the minor when she reached out to pet the dog. A scar remained following the removal of stitches, and the minor underwent cosmetic surgery. The minor sued on a theory of strict liability. The owners argued that petting or playing with the dog could not, as a matter of law, constitute provocation because provocation under Minn. Stat. § 347.22 (1980), which imposes liability on a dog owner when a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, had to have been intentional. Provocation is held to be an issue of fact properly submitted to a jury. In response to a special interrogatory, the jury found that the dog bit because it was provoked. The trial court denied the minor's motion for a directed verdict. The minor appealed, arguing that provocation should not have been submitted to the jury; that the wording of the special interrogatory was prejudicial; and that the damages awarded were inadequate. 

Issue:

Was the dog provoked?

Answer:

Yes

Conclusion:

The court affirmed the judgment from the trial court. The court held that: (1) provocation was an issue of fact properly submitted to the jury; (2) to constitute such a defense, the minor's provocation would have had to be voluntary, thus inviting or inducing her injury; and (3) for an action under § 347.22 the defense of comparative negligence was not available.

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