Koivisto v. Davis - 277 Mich. App. 492, 745 N.W.2d 824 (2008)

Rule:

Responding to or reacting to a dog's vicious and aggressive behavior does not constitute provocation under MCL 287.351(1); the dog is already in a provoked state.

Facts:

Defendants’ dogs escaped from the kennel, entered the plaintiff owner’s property, and attached both the owner and her cats. The owner stuck her fingers to one of the dog’s eyes, grabbed her cat and ran for the house. The dogs followed her and jumped at her, causing nail gashes and dog bites. Plaintiff owner filed the present claim against the defendants, under the dog-bite statute, MCL 287.351(1). Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(10), asserting that they were not liable because, while the attack on the first cat was admittedly unprovoked, the attack on plaintiff was not. Plaintiff chased the dogs into the woods, stuck her fingers in their eyes, kicked them, and otherwise fought with them to save her cats, thus causing the dogs to attack her. Plaintiff could not claim lack of provocation by relying on her defense of the cats because cats were personal property. The trial court granted summary judgment in favor of the defendants. The plaintiff owner appealed. 

Issue:

Was the plaintiff owner’s action barred because of her alleged provocation of the defendants’ dogs? 

Answer:

No.

Conclusion:

The judgment was reversed and remanded. The appellate court found that the owner's action was not barred. The owner did not provoke defendants' dogs. The dogs came onto the property unexpectedly and without her permissions. They immediately exhibited vicious and aggressive behaviors. The owner's response resulted in the dogs attacking her. The dogs were provoked before the owner reacted to their behaviors. Therefore, her response to the dogs' violent behavior could not be considered "provocation" within the contemplation of MCL 287.351(1). Responding to or reacting to a dog's vicious and aggressive behavior did not constitute provocation; the dog was already in a provoked state.