CAROLYN SUE KELSEY and DAVID B. KELSEY, Plaintiffs-Appellants,
NITA LINT, Defendant-Appellee.
Circuit Court LC No. 2015-020665-NO
Before: Markey, P.J., and Hoekstra and Ronayne Krause, JJ.
dog-bite case, plaintiffs Carolyn Kelsey and David Kelsey appeal
as of right the 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.
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
moved for summary disposition under MCR 2.116(C)(8) and
(C)(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.
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. Based
on 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.
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 court
concluded as a matter of law that Kelsey was a trespasser
when she returned to Lint's property after the sale.
Based on Kelsey's status as 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.
KELSEY'S STATUS ON LINT'S PROPERTY
appeal, plaintiffs first argue that the trial court erred by
dismissing their statutory and common law dog-bite claims
based on the conclusion that Kelsey was trespassing.
Specifically, plaintiffs contend that anyone, 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.
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
(C)(10). However, the parties and the trial court relied on
evidence outside of 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 Michigan,
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).
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.
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). 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).]
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