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Grams ex rel Grams v. Howard's O.K. Hardware Co. - 446 N.W.2d 687 (Minn. Ct. App. 1989)


Minn. Stat. § 347.22 (1988) creates absolute liability for dog owners subject only to the two defenses contained within the statute: 1) provocation and 2) failure to conduct oneself peaceably in any place where one may lawfully be.


Appellant Leah Grams, then 22 months old, and her grandmother Shirley Grams entered a hardware store in St. Paul. Respondent Herbert Howard, who brought his dog to the store, tended the store. The dog had a painful hip condition called hip dysplasia. Without seeing the dog walk, even a veterinarian could not detect such a condition. With the respondent’s permission, appellant petted the dog while the dog was lying down. Later in the day, appellant petted the dog a second time. The dog bit appellant. Appellant sued respondent in negligence and under  Minn. Stat. § 347.22 (1984) which created a cause of action for dog attack victims. Her complaint requested compensation for medical bills, physical disfigurement, and pain and suffering. The complaint requested total damages of approximately $41,000. At trial, at the close of the evidence, the trial court dismissed the negligence claim. The court then instructed the jury on Minn. Stat. § 347.22 and on the issue of provocation, a dog owner's defense under the statute. The jury found that appellant provoked the dog, and awarded respondent with costs and disbursements. Appellant challenged the decision.


Did the circumstances permit the conclusion that appellant provoked respondent’s dog?




Minnesota’s dog attack statute recognized provocation as an owner’s defense to liability. According to the statute, “if a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.” In the case at bar, the Court noted that, although the respondent knew the dog was in pain, that pain was not apparent to observers. In fact, the victim was told that the dog could be safely petted. Moreover, the victim was 22 months old and respondent introduced no evidence that the victim appreciated any danger in approaching the dog. While evidence permitted an inference that the child "stimulated" the dog by hugging or possibly sitting on it, no testimony indicated how this came about and there was no direct evidence to demonstrate that appellant's act was other than inadvertent. The Court concluded that the circumstances of the case raised no question of provocation and appellant was entitled to a judgment for the damages found by the jury.

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