Bradacs v. Jiacobone - 244 Mich. App. 263, 625 N.W.2d 108 (2001)

Rule:

Provocation of an animal may include unintentional acts, provided that the attack that followed was not grossly out of proportion to the act of provocation. Interpreting the word "provocation" contained in the Michigan dog-bite statute to include any "external stimulus" by the victim would render Mich. Comp. Laws § 287.351 (Mich. Stat. Ann. § 12.544) meaningless and would be contrary to the strict liability nature of the statute.

Facts:

In this dog-bite case, plaintiff Stephanie Bradacs, who was then twelve years old, was playing with defendants' daughter in their backyard. When plaintiff bent down to retrieve a football she had accidentally dropped, defendants', James and Barbara Jiacobone’s, dog bit her. It was undisputed that plaintiff did not drop the football near the dog or his food. As plaintiff bent down to retrieve the football, the dog bit plaintiff's right leg. Plaintiff was transported to the hospital by defendants, and the doctors used six stitches to close her leg wound. After plaintiff turned eighteen, plaintiff sued defendants asserting they were strictly liable under the dog-bite statute, Mich. Comp. Laws § 287.351 (Mich. Stat. Ann. § 12.544). But the jury returned a verdict for defendants. Plaintiff then appealed, arguing that the trial court erred by instructing the jury that provocation under the dog-bite statute was not limited to intentional acts of provocation but also included unintentional acts. 

Issue:

Did plaintiff's actions amount to provocation pursuant to dog-bite statute?

Answer:

No.

Conclusion:

The court reversed the trial court's judgment and held that even if provocation included unintentional acts, plaintiff's bending over to pick up the football within two feet of the dog's food, with no evidence of any quick or threatening gestures, could not reasonably be considered provocation. The court considered the dog's reaction was out of proportion to plaintiff's action.