NO. 94-277

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

HUGHIE F. STROOP,

Plaintiff, Respondent

and Cross-Appellant,

v. JUNO1 1995

JAMES C. DAY and COLLEEN M. DAY, .f>J(

CLGW IT: COURi

Defendants, Appellants

E6AWT~OP IVISN'I‘ANA

,:<; '~ ~'

and Cross-Respondents.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Lon T. Holden, Jardine, Stephenson, Blewett

& Weaver, Great Falls, Montana

For Respondent:

Jon S. McCarty, Scott & Tokerud, Great Falls,

Montana

Submitted on Briefs: March 10, 1995

Decided: June 1, 1995

Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Hughie E. Stroop filed a complaint in the Eighth Judicial

District Court, Cascade County, against James C. Day and Colleen M.

Day (the Days), alleging that they were liable for damages he

sustained when he was bitten by their dog. Stroop's complaint

alleged negligence and violation of § 27-l-715, MCA. Following

trial, the jury found that the Days were not negligent nor had they

violated 5 27-I-715, MCA. Stroop moved for a new trial on his

statutory claim. The District Court granted his motion. The Days

appeal the decision of the District Court granting Stroop's motion

for a new trial. Stroop cross-appeals the District Court's denial

of his motion in limine for an order ruling that contributory

negligence does not apply to the liability of defendants under

5 27-l-715, MCA. We affirm in part and reverse in part.

The issues are:

1 . Did the District Court err in granting Stroop's motion for

a new trial?

2 . Did the District Court err in denying Stroop's motion in

limine for an order ruling that contributory negligence does not

apply to the liability of defendants under § 27-l-715, MCA?

Stroop and the Days lived across an alley from one another in

Great Falls, Montana. On May 19, 1990, Stroop was working in his

backyard. He observed James Day in his backyard. Stroop testified

that he crossed the alley and approached the Days' residence to

tell Mr. Day about a suspicious looking vehicle he had seen near

the Days' house on the evening of a recent robbery.
The Days' property was separated from the public alley by a

"picket" type fence approximately forty-eight inches high. stroop

stood in the alley next to the Days' fence. As Day and Stroop

conversed, Stroop leaned on the fence, rested his arms on the top

horizontal cross-board and extended his hands and forearms into the

Days' property. The Days' dog, Stogie, ran at Stroop in an

aggressive manner. Stroop pulled his hands back from the Days'

property.

Day testified that, after Stogie ran at Stroop, he cautioned

Stroop about placing his hands over the fence. Stroop denied

receiving any such warning.

Day and Stroop continued their conversation for several

minutes. Sometime during their discussion, Stroop again leaned

against the Days' fence, placing his hands and forearms into the

Days' property. When Stroop extended his hands into the Days'

property a second time, Stogie jumped up and bit Stroop's right

hand. The parties dispute the severity of the bite and the extent

of the damages suffered.

Stroop filed a complaint against the Days in the Eighth

Judicial District Court, Cascade County. Stroop alleged negligence

on the part of the Days as well as violation of § 27-l-715, MCA.

Following trial, a jury found that the Days were not negligent nor

had they violated § 27-l-715, MCA. Stroop moved for a new trial on

his statutory claim. The District Court granted Stroop's motion

for a new trial, determining that there was insufficient evidence

for the jury to conclude that the Days had not violated § 27-I-715,

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MCA. The Days appeal the District Court's granting of a new trial.

stroop cross-appeals the District Court's determination that

contributory negligence is applicable to the statutory claim.

Issue 1

Did the District Court err in granting Stroop's motion for a

new trial?

Pursuant to § 25-11-102, MCA, the District Court determined

that there was insufficient evidence to justify the jury's verdict

that the Days had not violated 5 27-l-715, MCA. We review a

district court's decision to grant a new trial to determine whether

there was a manifest abuse of discretion. Stanhope V. Lawrence

(1990), 241 Mont. 468, 787 P.2d 1226. We review the evidence in a

light most favorable to the prevailing party to determine whether

there was sufficient evidence that reasonable minds might accept as

adequate to support a conclusion. Gass v. Hilson 119901, 240 Mont.

459, 784 P.2d 931; Barrett v. ASARCO (1990), 245 Mont. 196, 799

P.2d 1078.

Section 27-l-715, MCA, reads:

(1) The owner of any dog which shall without

provocation bite any person while such person is on or in

a public place or lawfullv on or in a urivate place,

including the property of the owner of such dos. located

within an incorporated city or town shall be liable for

such damages as may be suffered by the person bitten

regardless of the former viciousness of such dog or the

owner's knowledge of such viciousness.

(2) A person is lawfully upon the private property

of such owner within the meaning of this section when he

is on such property in the performance of any duty

imposed upon him by the laws of this state or by the laws

or postal regulations of the United States of America or

when he is on such propertv as an invitee or licensee Of

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the person lawfullv in possession of the propertv.

[Emphasis added.]

The Days alleged that: 1) Stroop provoked Stogie prior to the

incident or 2) Stroop was not lawfully on or in the Days' private

property at the time of the incident. They argue that if there was

sufficient evidence of either of these statutory defenses, the

District Court abused its discretion by granting a new trial. We

address these arguments in turn.

The Days claim that there were three acts of provocation which

led to the dog bite incident. First, approximately four to six

weeks before the incident, Stroop chased Stogie out of Stroop's

yard with a steel fence post. Second, on the day of the dog bite,

Stroop extended his hands and forearms over the Days' fence and

into "Stogie's turf." This led to Stogie's initial aggressive

behavior toward Stroop. Finally, immediately before Stogie bit

Stroop, Stroop again extended his hands and forearms over the Days'

fence and into Stogie's turf.

The Days argue that, absent a defining statute or clear

legislative intent, this Court should adopt the plain meaning of

the term "provocation." The Days suggest several dictionary

definitions of provocation which include any act that aroused,

stimulated or incited a dog to bite an individual. Pursuant to

this interpretation of provocation, the Days claim that Stroop's

three acts provoked Stogie into biting.

Stroop argued, and the District Court agreed, that these acts

were insufficient, as a matter of law, to satisfy the provocation

defense in § 27-l-715, MCA. Stroop claims that under the Days'

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interpretation of "provocation," any act or occurrence that caused

a dog to bite an individual would become a defense under § 27-L

715, MCA. Thus, only a completely spontaneous attack would violate

this section. The "without provocation" defense would thus

overshadow the law and would render the statute virtually useless.

See Robinson v. Meadows (Ill. Ct. App. 1990), 561 N.E.2d 111.

Stroop suggests that, to further the reasonable intent of the

statute, provocation must be more narrowly defined. He argues that

a more appropriate definition of provocation would require the

victim to intentionally tease, torment or torture the dog.

After reviewing case law from various jurisdictions, we do not

believe that either of the parties' proposed definitions are

entirely correct, but rather this issue must be analyzed on a caseby-case basis. Clearly not every occurrence that stimulates a dog

to bite an individual should be a defense under § 27-l-715, MCA.

Conversely, provocation should not be required to rise to the level

of intentional torture to be a valid defense.

In Robinson, the Illinois Court of Appeals addressed this

particular concern. In its discussion, the court stated:

Where, as here, the terms of a statute are not specifically defined, the words must be given their ordinary and

popularly understood meanings, but the words must also be

construed with reference to the purposes and objectives

of the statute. [Citation omitted.1 Where literal

enforcement of a statute will result in great injustice

which was not contemplated, we will construe the statute

to give effect to what must have been reasonably intended

by the legislature. [Citation omitted.1

As commonly understood, provocation means an act or

process of provoking, stimulation or excitement.

These definitions are so expansive, however, that, if

taken literally, [the Illinois dog-bite statute1 could be

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interpreted to mean that provocation exists whenever any

external stimulus has precipitated the attack or injury

by an animal, i.e., whenever the animal's actions are not

completely spontaneous. . [Wle believe that so

literal an interpretation would render the statute

largely meaningless, and yield unjust and absurd results.

Robinson, 561 N.E.Zd at 114. The court went on to conclude that

the determination of what constituted provocation has generally

"proceeded on a case-by-case basis." Robinson, 561 N.E.2d at

115. Under such an analysis, provocation may include unintentional

acts, provided that the attack that followed was not grossly out of

proportion to the act of provocation. Wade v. Rich (Ill. Ct. App.

1993), 618 N.E.2d 1314.

We do not dispute the Days' claim that a dog is capable of

remembering specific instances from its past. We nevertheless

conclude, as a matter of law, that Stroop's act of chasing Stogie

with a fence post four to six weeks prior to being bitten was not

provocation under § 27-1-715, MCA. An incident so remote in time

cannot be considered provocation under the terms of this statute.

Similarly, Stroop's extending his hands and forearms into the

Days' property was not provocation. There was no testimony that

Stroop thrust his hands toward the dog or made any quick or

threatening gestures. As discussed below, Stroop's hands were

lawfully on the Days' property. Mere presence on the property of

another does not amount to provocation. See Smith v. Pitchford

(Ill. Ct. App. 1991), 579 N.E.2d 24. Conduct such as Stroop

resting his arms on the fence and allowing his hands and forearms

to dangle over the Days' property cannot be considered provocation

under any reasonable interpretation of that term.

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The Days' second argument is that Stroop was not lawfully on

or in the Days' property at the time of the bite. The Days argue

that, while Stroop may have initially been lawfully on the Days'

property, Day's warning Stroop to remove his hands from over the

fence and Stogie's aggressive behavior converted Stroop's permissive presence to nonpermissive presence. The Days claim that,

because Stroop was a "trespasser" at the time of the incident, he

is barred from recovery under § 27-I-715, MCA.

Stroop argues that he was not a trespasser at the time of the

incident. Stroop claims that he was standing in a public alley,

with only his hands over the Days' property. He claims any

encroachment onto the Days' private property was made as either an

invitee or a licensee. Therefore, he was in a public place or

lawfully in a private place pursuant to the terms of § 27-l-715,

MCA.

The jury was instructed as follows:

One who enters upon the premises of another at the

express or implied invitation of the owner of the

premises is called in law an invitee. An invitation is

implied where there is some common interest or mutual

advantage gained by the property owner as a result of the

individual's presence.

One who enters upon the premises of another for his

own purpose, but with the permission or sufferance of the

owner, is called in law a licensee. A license is implied

where the object or purpose of the individual's presence

upon the property is the pleasure, convenience or benefit

of the individual.

State ex. rel. Burlington Northern, Inc. v. District Court (19721,

159 Mont. 295, 496 P.2d 1152. The jury was properly instructed

8
concerning Stroop's status as either an invitee or a licensee. The

Days presented no facts by which the jury could have concluded that

Stroop was not either a licensee or an invitee at the time of the

incident. Any admonishment that Stroop should remove his hands

from the fence or Stogie's display of aggressive behavior in the

backyard did not revoke Stroop's status as an invitee or licensee.

There was no evidence that Day revoked Stroop's status as a

licensee or invitee. By ignoring Day's warning and Stogie's

aggressive behavior, Stroop has not barred his claim.

We conclude that the District Court did not err in granting

Stroop a new trial. Insufficient evidence was presented at trial

that Stroop provoked Stogie. Likewise, there was insufficient

evidence that Stroop was not in a public place or lawfully in a

private place at the time of the incident. Therefore, there was

not a manifest abuse of discretion by the District Court.

Issue 2

Did the District Court err in denying Stroop's motion in

limine for an order ruling that contributory negligence does not

apply to the liability of defendants under § 27-l-715, MCA?

The Days argue that this issue is not ripe for decision by

this Court because the jury did not reach the issue of contributory

negligence at the trial below. Alternatively, the Days claim that

contributory negligence is applicable because Stroop pled his

statutory claim as negligence per se. Therefore, the plaintiff's

negligence must be compared to the defendants' negligence to

apportion fault.

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Stroop argues that the District Court erred by denying his

motion in limine for an order ruling that contributory negligence

does not apply to the liability of the defendants under § 27-l-715,

MCA. Stroop claims that g 27-l-715, MCA, imposes strict liability

on dog owners. He argues that liability is therefore limited only

by the enumerated defenses provided by that section. stroop

insists that, because he did not provoke Stogie and was lawfully

upon the premises, no other conduct may be considered to mitigate

the Days' liability.

We agree with Stroop that § 27-l-715, MCA, imposes strict

liability on dog owners. See Seim v. Garavalia (Minn. 19811, 306

N.W.2d 806, 810 (determining that a similar statute imposed strict

liability rather than negligence per se). There is a clear split

of authority concerning whether the defenses of contributory or

comparative negligence should be applicable to strict liability

dog-bite statutes. Many jurisdictions have determined that

defendants are limited to the defenses enumerated in the statutes,

namely that the plaintiff provoked the dog or the plaintiff was a

trespasser at the time of the incident. See, e.g., Quellos v.

Quellos (Ohio Ct. App. 19941, 643 N.E.2d 1173; Massey v. Colaric

(Ariz. 1986), 725 P.Zd 1099; - I Seim 306 N.W.Zd at 811-12; Nicholes

v. Lorenz (Mich. 1976), 237 N.W.2d 468.

However, other jurisdictions have determined that the defenses

of contributory negligence, comparative negligence or comparative

fault are consistent with their strict liability dog-bite statutes.

See, e.g., Hayes v. McFarland (La. Ct. App. 19881, 535 So.2d 568;

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Howard v. Allstate Insurance Co. (La. 1988), 520 So.2d 715; Ambort

v. Nowlin (Ark. 19861, 709 S.W.2d 407; Budai v. Teague (N. J.

Super.L. 1986), 515 A.2d 822.

After reviewing these cases and the applicable statutory

language, we hold that contributory negligence is not a defense to

a claim brought under § 27-l-715, MCA. As previously stated, the

only defenses provided within 5 27-I-715, MCA, are that the dog was

provoked or that the defendant was a trespasser. In Massev, the

Arizona Supreme Court stated:

A.R.S. § 24-378 permits a person injured by a dog while

at large to recover simply by proving that the statute

has been violated. If the elements of the statute are

satisfied, the legislature has decided to impose liability without fault. The only defense provided is provocation, A.R.S. § 24-523, with the common law defenses of

contributory negligence and assumption of risk superseded.

Massev, 725 P.2d at 1100-01.

We find the reasoning of the Massey court persuasive. Section

27-l-715, MCA, provides that dog owners are liable for damages

caused by their dogs, regardless of the owners' negligence. The

statute lists two defenses. If the victim can establish that he or

she was bitten by a dog and the dog's owner is unable to establish

either of the enumerated defenses, the owner is liable. Ideas of

comparative or contributory negligence are inapplicable under such

a strict liability scheme.

In sum, we conclude that the District Court did not abuse its

discretion in granting a new trial. However, we conclude that the

District Court erred in denying Stroop's motion in limine for a

11
ruling that contributory negligence does not apply to a claim

brought under § 27-l-715, MCA.

We therefore affirm in part and reverse in part the decision

of the District Court and remand for further proceedings consistent

with this opinion.

(/.A$?!_ +

Chief Justice

I

We concur:

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