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Writing Sample – Georgetown University Law Center George T. Phillips

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To: Professor Rima Sirota

From: George T. Phillips

Date: 11/24/14

Re: Cookie Fleck – Dog Owner Liability

Question Presented

Under Minnesota law, is Harlan Pepper liable to Cookie Fleck for damages when a canine

Pepper transported from its licensed owner’s home to Fleck’s home acted in an excited but non-

threatening manner, causing Fleck to fall from a stepladder and sustain bodily injuries, resulting in

subsequent losses to her and her own canine’s reputations and certain business interests?

Brief Answer

Yes. Pepper is strictly liable for damages under Minnesota law, but only to the extent of

Fleck’s bodily injuries, which were the direct result of the canine’s acts. The canine’s non-hostile acts

do qualify as actions that “attack or injure,” Fleck did not “provoke” the canine and Pepper satisfies the

requirements for statutory ownership of the canine. Thus, Fleck’s claim meets the statute’s three

elements, rendering Pepper liable for Fleck’s immediate personal injuries, but not for her consequential

losses.

Facts

Fleck owns a canine named Winky, a dog show champion, and throws a send-off party

annually before she, her husband and Winky travel to Philadelphia for a dog show. In last year’s

competition, the Flecks met the Swans, owners of another contestant named Beatrice, and the families

got acquainted after their dogs became friends, excitedly playing together at the show.

Several months later, the Swans moved to a town 15 minutes from the Flecks, and the families

started arranging get-togethers for their dogs at least once a month. The dogs continued to excitedly

play as they had at the show.

Fleck invited the Swans to this year’s send-off party, but they had other obligations. She then

obtained permission from the Swans to have Pepper pick up Beatrice from the Swans’ home. Despite

initially declining, Pepper eventually agreed. Fleck warned Pepper that Beatrice could be “high-

strung,” but that Pepper could calm her through the use of her favorite squeak toy.

On the day of the party, Pepper arrived early at the Swans’ home, picking up Beatrice using the

toy to lead her to the car. He made special arrangements to transport her, placing a sheet over his back


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seat to keep it clean. During the trip he fed Beatrice a single nut from a pack he was eating. Pepper

arrived at the Flecks’ home forty minutes before the party’s scheduled start. After parking, he told

Beatrice “You’re going to see Winky now!” and she became visibly excited. When he opened the car

door, Beatrice escaped Pepper’s grasp and ran towards the Flecks’ fence. Beatrice placed her front

paws on the fence and, looking over it and seeing Winky, began barking loudly.

At that moment, Fleck was on a stepladder hanging a banner three feet from Beatrice. Startled

by the barking, she fell to the ground. She twisted her knee, which required surgery, and hit her head.

She has since suffered recurring headaches and back pain. Consequently, she was unable to attend the

show, and her husband and Winky were unsuccessful in defending their title without her. The defeat

has reduced sales of Fleck’s CD of dog-inspired songs. She would like to determine the strength of her

claim against Pepper.

Discussion

Minnesota law provides relief for persons injured by dogs by rendering the “owner” strictly

liable for their dog’s actions. Minn. Stat. Ann. § 347.22 (West 2014). To qualify for relief, the claim

must meet three elements: (1) the canine must “attack or injure” plaintiff, (2) the canine must act

“without provocation” from plaintiff, and (3) defendant must be the dog’s “owner ” or one “harboring

or keeping [the] dog.” Id.. Fleck’s claim meets all three elements.

(1) Beatrice did “attack or injure” Fleck when she jumped on the fence because Fleck’s fall was

the direct result of Beatrice’s acts, regardless of their non-hostile nature.

Dog owners are liable for damages when their dog’s actions immediately impact plaintiff and

only for damages from that immediate impact. Llewellyn ex rel. Lewellin v. Huber, 465 N.W.2d 62,

64 (Minn. 1991). Physical contact is not required. Morris v. Weatherly, 488 N.W.2d 508, 511 (Minn.

Ct. App. 1992). Plaintiff need not be the focus of the acts. Anderson v. Christopherson, 816 N.W.2d

626, 631 (rejecting a focus requirement in Mueller v. Theis, 512 N.W.2d 907, 910-11 (Minn. Ct. App.

1994), as inconsistent with Lewellin). Moreover, non-contact actions do not have to be hostile or

threatening. Boitz v. Preblich, 405 N.W.2d 907, 910 (Minn. Ct. App. 1987). In Lewellin, plaintiff was

driving with a dog she was sitting for when the canine climbed to the front of the vehicle. 465 N.W.2d

at 63. The distraction eventually lead to an accident, killing a nine-year-old child. Id.. The court held

that “[t]here was no direct, immediate connection between the dog’s behavior and the child lying in the

ditch” because plaintiff’s reaction to the behavior introduced a link in the causal chain separating the

dog’s actions from the fatality. Id. at 66. The court articulated a standard for liability where a dog’s


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acts qualified under the statute if they proximately caused the injuries from a causality standpoint,

regardless of whether the actions were hostile or non-hostile. Id..

In subsequent cases applying that standard, the court found liability from indirect but hostile

acts. In Morris, a consolidated appeal, liability was found in one case where the canine ran at an

“attacking pursuit” towards plaintiff, resulting in injuries when plaintiff fell from his bike evading the

pursuit. 488 N.W.2d at 510. In the other case, defendant was found liable when plaintiff hurt his back

spinning around after defendant’s dog ran at plaintiff “’flying through the air.’” Id.. The Lewellin

standard has also permitted findings of liability when the canine’s hostile acts resulted in injuries to an

intervening third-party that was not the direct focus of the actions. Anderson, 816 N.W.2d 626, 628-

29. Moreover, in a pre-Lewellin case cited by the state Supreme Court in Lewellin, a canine’s non-

hostile acts with direct physical contact qualified under the statute. Boitz, 405 N.W.2d at 910

(“[I]njuries inflicted by a dog outside the scope of a vicious attack are not … excluded from coverage

under the statute.”).

Across these cases, a dog’s actions can directly cause plaintiff’s injuries without hostile intent,

physical contact or a direct focus towards plaintiff. Here, Beatrice did just that. Beatrice’s barking

directly caused Fleck to fall from the stepladder, resulting in bodily harm. Fleck can concede that

Beatrice’s acts were non-hostile and did not involve direct contact or focused action and still satisfy

this element because her injury “was the direct and immediate result” of Beatrice’s barking. Anderson,

816 N.W.2d at 631 (Minn. 2012) (citing Lewellin, 465 N.W.2d at 65). As such, she can recover

damages for her direct personal injuries, but she cannot recover damages for consequential losses such

as the dog show defeat and the reduced CD sales. Those damages are too far down the concatenation

of causality to qualify.

(2) Fleck did not actively provoke Beatrice, nor did she knowingly place herself in a position of

liability by standing on the stepladder despite knowing Beatrice would be excited upon arriving

and seeing Winky.

Minnesota courts have defined provocation as “voluntary conduct that exposes the person to a

risk of harm from the dog, where the person had knowledge of the risk at the time of the incident.”

Engquist v. Loyas, 803 N.W.2d 400, 406 (Minn. 2011). This standard is consistent with the state’s

common law definition of provocation. Fake v. Addicks, 47 N.W. 450, 450 (Minn. 1890) (holding that

“accidental interference” such as stepping on a dog inadvertently is not provocation). There is no

specific requirement that plaintiff act in a manner that is affirmatively directed towards the canine,

plaintiff must merely be aware that the acts will place him or her in a position of risk. For example,


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petting a dog whose violent nature is unknown to the victim would not qualify as provocation.

Engquist, 803 N.W.2d at 407.

Here, Fleck voluntarily climbed the stepladder and knew that Beatrice was an excitable dog

around Winky, but Pepper arrived forty minutes early. She did not expect them to arrive while she was

hanging the banner. Instead, she expected them forty minutes later, after she hung the banner, put the

stepladder away, and started Winky’s party. Thus, a court should find that Fleck did not voluntarily

and knowingly place herself in a position of liability because she expected Beatrice’s arrival after her

exposure to such risk had ended.

(3) Pepper qualified as a statutory “owner” at the time of the incident because he voluntarily

accepted control of Beatrice for a limited period of time and exercised it in a manner generally

resembling that of the primary owners.

The statute’s definition of ownership, which includes “harboring or keeping,” Minn. Stat. Ann.

§ 347.22, is effectuated through a four-element test. Carlson v. Friday, 694 N.W.2d 828, 831 (Minn.

Ct. App. 2005). The test requires “(1) a voluntary acceptance (2) of temporary responsibility (3) as it

relates to the management, control, or care of the dog; (4) exercised in a manner generally similar to

that of the dog’s primary legal owner.” Id.. Statutory ownership “cannot be equated with long-term

proprietary control.” Kent v. Block, 623 N.W.2d 906, 909 (Minn. Ct. App. 2001). This standard

comports with Boitz, where the owner’s houseguest was not found liable because he did not

voluntarily accept control of the dog just because he “happened to be in the house … [and] had a

passing knowledge of the dog.” 405 N.W.2d at 911.

In Kent, a dog sitter qualified as a “keeper” because she voluntarily accepted her temporary

responsibilities, which involved control over and care for the canine in a manner that, by nature, was

designed to resemble that of the dog’s primary owners. 623 N.W.2d at 908.

In Carlson, the court held that a dog groomer qualifies as an owner under the statute. 694

N.W.2d at 831. Groomers only handle dogs for a specific purpose and very limited amount of time,

but the court held that groomers voluntarily accept temporary responsibility for the dog in a manner

that resembles the basic attributes of ownership. They clean, secure and kennel the dogs, and keep

them from escaping their control. Id..

These “secondary owner” cases involving “harboring or keeping,” particularly Carlson,

resemble Fleck’s claim. Pepper voluntarily accepted his duties from the Swans and Fleck. Though

Fleck had to convince Pepper, it cannot be said that he was forced to undertake these responsibilities.

It is unknown whether Pepper was charged with returning Beatrice to the Swans or not, but his


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responsibility for Beatrice was certainly very temporary, similar to the groomer in Carlson. Pepper’s

responsibilities related to the “management, control or care of the dog” as well. He secured Beatrice

for safe and secure transport in a manner that controlled her and kept her from escaping. Moreover,

the transportation of the canine could qualify as “management” since he did so in accordance with

Beatrice’s schedule.

Though the single nut he fed her on its own does not create ownership, see Verrett v. Silver,

244 N.W.2d 147, 149 (Minn. 1976) (“Harboring or keeping a dog means something more than a meal

of mercy…”), it can support a finding of statutory ownership when combined with these other factors.

Pepper’s responsibilities were exercised in a manner mirroring those of the dog’s primary owners

because he took those steps to safely, securely and comfortably transport Beatrice, including bringing

her favorite toy. These are steps the Swans would similarly take in performing such duties for

Beatrice. Pepper thus qualifies as an “owner…harboring or keeping a dog.” Minn. Stat. Ann. §

347.22.

Conclusion

Because Beatrice’s acts did “attack or injure” Fleck, and because those acts were unprovoked,

Beatrice’s owner is liable for direct damages resulting from Fleck’s bodily harm, but not for other

consequential losses. Because Pepper qualified as Beatrice’s statutory owner at that time, he is liable

for damages as a result of the injuries Fleck sustained from Beatrice’s acts while the dog was under

Pepper’s control.

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