Most condominium bylaws will contain some form of restrictions on animals. Enacting animal restrictions is a prudent approach for condominium and homeowners association to protect the members of their community. However, the adoption and enforcement of animal restrictions are not a guarantee that a dog will not bite another animal or human.
Burling v. Skief Factual Background
In Michigan, when a dog bite occurs and a victim is injured, liability for the dog bite generally attaches to the dog owner. However, in the context of community associations, a dog bite victim may also attempt to pursue claims against a condominium or homeowners association. In Burling v Skief, unpublished per curiam opinion of the Court of Appeals, issued October 22, 2020 (Docket No. 350575),the parents of a child bitten by a dog brought a dog bite-based negligence claim against the dog owner and the mobile home park operator where the attack occurred. The Court of Appeals affirmed the trial court’s decision that the mobile home park operator was not liable. Critically, the incident took place in an area within the dog owner’s control, and the mobile home park operator did not know or have reason to know of the dog’s dangerous nature, thereby creating no duty to protect the dog bite victim from harm. The Burling Court also recognized that the mobile home park operator owed no duty to third parties to enforce animal rules governing the mobile home park, which were similar to common animals restrictions that can be found in condominium and HOA bylaws. Id. at 3.
In this dog-bite case, the plaintiff, a child, walked up to a mobile home tenant’s front door, which was open, to invite the tenant’s daughter to play. When plaintiff knocked on the shut screen door into which she “smashed” her face, she startled the tenant’s wife sitting inside the home. This caused the family’s two-year old Labrador and Bullmastiff mix dog to jump and lunge at the screen door, breaking it open and biting plaintiff on her arm.
Although the mobile home park had implemented a set of rules and regulations regarding animals, the Burling Court found that the mere existence of an animal policy did not create a legal duty on the part of the mobile home park to protect the plaintiff from the dog. Examining foreseeability, the Court of Appeals explained that “common canine behavior is usually insufficient to show that a dog is abnormally dangerous or unusually vicious. [T]he mere fact that a dog barks, growls, jumps, or approaches strangers in a somewhat threatening way is common canine behavior.” Id. at 3 (quotation marks and citations omitted). There was no evidence that before the incident, the mobile home park operator knew or had reason to know that the attacking dog was violent or dangerous.
In determining that the injury was not foreseeable and that the mobile home park operator did not owe the dog bite victim any duty, the Court of Appeals did not find that the animal control report sufficiently established the dog’s vicious nature such that the liability of the dog owner or the mobile home park might be triggered. While the animal control report described the dog as aggressive before the bite, the report did not qualify, one way or the other, whether this referred to the dog’s character right before the attack, or the dog’s nature observed over time. Moreover, the dog was described as friendly and playful, and it did not have a known history of biting other humans.
Under common law principles of tort liability, the Burling Court found that the mobile home park operator did not owe a duty to protect the plaintiff. First, plaintiff did not show that the dog was abnormally dangerous or unusually vicious beyond common canine behavior. The dog was neither a prohibited breed nor did it have a history as an aggressive dog. Second, even recognizing the concept of a special relationship between landlord and tenant, the landlord’s duty to keep areas reasonably safe did not trigger the mobile home park’s liability when the attack occurred on the front porch, which the tenant occupied as part of his leasehold. Third, in comparing the duty of a mobile home park operator to a landlord, Michigan caselaw instructs that a “landlord has no duty to third parties to enforce a pet provision in its rules and regulations. A landlord can only be held liable for injuries from a tenant’s dog if the landlord knew of the dangerous nature of the dog at the time the parties entered into the lease.” Id. at 3 (citations omitted) (emphasis added). Here, the mobile home park operator regulated animals with an additional $50 fee and fees for violations of the restrictions. The dog owner was in compliance with animal restrictions at the time of the dog bit.
While Michigan law is clear that a dog owner is liable for damage if he or she knows or has reason to know that the dog has a vicious nature, the mobile home park in the case of Burling had no duty to proactively determine the dog’s nature when it merely learned that the tenant was keeping the dog in its home. Similarly, establishing that a condominium or homeowners associations was aware that an owner had dog would be insufficient to establish liability, unless a plaintiff were able to demonstrate that the condominium or homeowners association was aware of the vicious nature of the dog prior to a dog bite and did not take appropriate action.
Imposing animal restrictions is an appropriate measure to curb dog attack liability, condominium and homeowners associations must enforce their rules. Accordingly, while community associations are not obligated to seek out vicious animals, if they become aware of incidents, they should take appropriate action to enforce the governing documents by sending warning letters, levying fines, and seeking an injunction to have a dangerous animal removed if it continues to pose a danger to the community. As such, if your community association has a dangerous animal in their community, the board of directors should contact a community association attorney for assistance in determining an appropriate course of action.
Crystal Chow is an attorney with Hirzel Law, PLC. Her practice focuses on community association law and real estate litigation. She received a B.A. from Calvin College, a M.IPIS from Carleton University, and a J.D. cum laude from Michigan State University College of Law. After graduation, Crystal clerked for the Honorable David J. Newblatt of the Genesee Circuit Court. She is a member of the Real Property Law and Consumer Law Sections of the State Bar of Michigan, and the Real Estate Law and Commercial Banking, Collections and Bankruptcy Sections of the Illinois State Bar Association. Crystal may be reached at (248) 480-8758 or email@example.com.