Man Attacked By Goose On Hospital Property Can Proceed With Premises Liability Claim
The plaintiff, who was injured when a goose attacked him on a hospital’s property, can pursue a premises liability claim against the hospital because the plaintiff alleged 1) the goose was a condition of the land whose dangerousness was known and 2) the hospital failed to warn him about the dangerous goose, the Michigan Court of Appeals has ruled.
However, the plaintiff’s negligence claims were barred, the Court of Appeals held, because he did not allege the hospital or its security company “had dominion, control, or possession” over the goose that attacked him.
The plaintiff in Leiendecker v Ascension Genesys Hospital (Docket No. 372252) sued the defendants, Ascension Genesys Hospital and Teachout Security Service, Inc., claiming he was attacked by a goose on the hospital’s premises and, as a result, he suffered a fractured hip that required surgery. In his complaint, the plaintiff alleged that hospital employees and security personnel had stated the goose was an “ongoing danger” and had attacked other people, and that the defendants failed to remove it or warn of its presence.
The Genesee County Circuit Court dismissed the plaintiff’s complaint. The trial court relied on the doctrine of ferae naturae, which says a defendant cannot be liable for the actions of wild animals if it does not exercise dominion, control or possession over them. The plaintiff appealed that decision.
In a published and binding opinion, the Court of Appeals upheld the dismissal of the plaintiff’s negligence claim, but reversed the dismissal of the premises liability claim against Ascension.
“[B]ecause plaintiff alleged that the goose was a condition of the land whose dangerousness was known to Ascension, and Ascension failed to warn plaintiff about the dangerous goose, he has raised a legally sufficient premises liability claim against Ascension,” Judge Adrienne N. Young wrote for the majority. “Therefore, we … reverse as to Ascension on the premises liability claim, and remand for further proceedings.”
Judge Christopher P. Yates issued a separate concurring opinion. Judge Mark T. Boonstra issued a separate concurring and dissenting opinion.
Background
The plaintiff was attacked by a goose while leaving an Ascension facility in Grand Blanc, Michigan. After being knocked to the ground by the goose, one of Teachout’s security officers drove the plaintiff to the emergency room (ER). The security officer reportedly told the plaintiff the goose had been living on Ascension’s premises for at least “several days” and “had been an ongoing danger to people walking in the area.” While at the ER, a hospital employee reportedly told the plaintiff that a goose attacked her a week prior and she had reported that attack to Ascension. The plaintiff’s wife was also reportedly told by a Teachout security officer that a goose had previously attacked several other people and had chased cars in the area.
The plaintiff sustained a fractured right hip from the goose attack and underwent a total right hip replacement. He was unable to work or care for himself and required additional medical care, including physical therapy.
The plaintiff subsequently sued Ascension under theories of premises liability and negligence. He alleged that Ascension knew the goose was dangerous, owed the plaintiff a duty to maintain the premises in a safe condition, failed to remove the goose or warn of its presence, and that this failure caused his injuries. The plaintiff’s second amended complaint specifically alleged that Ascension was “the owner and/or possessor of the property.” The plaintiff also sued Teachout under a negligence theory, alleging that as the hospital’s agent, Teachout owed him the same duties that the hospital owed, and that Teachout’s failure to remove the goose, warn of its presence or advise Ascension of the goose caused his injuries. The plaintiff did not allege that Teachout owned or possessed the property on which the goose attacked him.
After mediation was unsuccessful, Ascension filed a cross-claim against Teachout, claiming it had breached its contract because it was required to indemnify the hospital. Upon filing an answer to Ascension’s cross-claim, Teachout filed its own cross-claim against Ascension, asserting that Ascension had breached its contract by not indemnifying Teachout.
Both Ascension and Teachout answered the plaintiff’s complaint. In its answer, Ascension asserted affirmative defenses that the goose attack was “an act of God and unforeseeable” and that it was “not in possession or control of the premises” on which the plaintiff was injured. Teachout did not raise any affirmative defenses.
Teachout filed a motion for summary disposition, arguing the plaintiff’s claims should be dismissed under the doctrine of ferae naturae because a goose is a wild animal, the goose was not within the possession or control of either Teachout or Ascension, and the plaintiff never alleged that Teachout had control or possession over the goose. Teachout also contended that the plaintiff’s claims sounded exclusively in premises liability, not negligence. Meanwhile, Ascension filed a concurring motion adopting Teachout’s legal arguments relating to the doctrine of ferae naturae and requested the same relief (dismissal of the plaintiff’s claims).
In his response, the plaintiff asserted that Teachout’s motion for summary disposition should be denied because “even though the goose was a wild animal, defendants knew, or should have known, that the goose was on the property and attacking people.” The plaintiff further asserted that he had “pleaded a viable claim against Teachout, whether it sounds in negligence or premises liability.”
After a hearing, the trial court granted summary disposition to both defendants and dismissed the plaintiff’s claims. Finding that Glave v Michigan Terminix Co, 159 Mich App 537 (1987), controlled, the trial court stated: “ … before a party may be found liable for actions of a wild animal, it must be shown that the animal was subject to the party’s dominion, control, or possession. Thus, because [p]laintiff failed to allege that the goose that attacked him was subject to dominion, control, or possession of either of [d]efendants, dismissal of the claim is proper pursuant to MCR 2.116(C)(8).” The trial court did not consider whether the plaintiff should have pleaded a claim of premises liability against Teachout, instead of negligence.
The plaintiff appealed.
Premises Liability Claim Can Proceed
On appeal, the plaintiff argued that the trial court wrongly dismissed his claims. The Court of Appeals agreed – but only as to the premises liability claim against Ascension.
According to the Court of Appeals, the trial court correctly applied Glave to preclude any negligence claims as a matter of law. “Plaintiff did not allege Ascension or Teachout had dominion, control, or possession over the goose that attacked plaintiff. Rather, plaintiff alleged that Ascension was the ‘owner and/or possessor of the property’ where plaintiff was injured by the goose. That is a claim sounding in premises liability ….”
The Court of Appeals noted the plaintiff alleged he was an invitee on Ascension’s property, that the goose was a “dangerous condition on the land” and that Ascension “failed to warn plaintiff of the goose or to take steps to remove the goose” from its property. “If the plaintiff’s injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence. … And while premises liability is a form of negligence, this Court distinguished the two claims such that an animal can be considered a dangerous condition on the land for purposes of a premises-liability claim.”
The Court of Appeals explained that in Tripp v Baker, 346 Mich App 257 (2023), the appellate panel relied on the Second Restatement of Torts, which defines a “’condition on the land’ as an artificial or natural ‘risk … [a visitor] encounter[s]’ when they enter on to another’s land” and held that “a dog could certainly be considered a condition on the land for purposes of premises liability because it poses an artificial risk to a visitor when they enter onto another’s land. … This Court explained that a premises liability claim involving a dog ‘requires a showing that: (a) the dog is a condition on the land and (b) the defendant had knowledge of the dog’s dangerous tendencies.’”
Next, the Court of Appeals recognized “the factual distinction between this case and Tripp in that dogs are domesticated (generally) and controllable (generally) in ways that the goose that attacked plaintiff is not.” However, Tripp “did not rely on the domesticated nature of the dog, implicitly or explicitly, to determine whether it was ‘of the land.’ And conditions of the land can be natural or artificial and a goose, like a dog, can pose an ‘artificial risk’ to invitees. … While geese can fly and dogs cannot, the permanence, or lack thereof, of a dangerous condition does not determine liability of the property owner. …”
As a result, the plaintiff “states a cognizable premises liability claim if plaintiff pleaded the goose is a dangerous condition of the land about which the landowner knew or should have known,” the Court of Appeals said. “Plaintiff’s second amended complaint sufficiently does that. First, plaintiff’s complaint refers to the goose as a ‘dangerous condition’ on Ascension’s land. Plaintiff also alleges the goose had been living on the land for at least several days and was nesting. Second, plaintiff alleges that defendant Ascension knew of the danger the goose posed, because of prior reported attacks, and failed to appropriately respond. Thus, plaintiff’s pleading is legally sufficient to survive a motion brought under MCR 2.116(C)(8) as to Ascension only.”
Therefore, “we affirm the trial court’s order dismissing the negligence claims against Teachout and Ascension, reverse as to Ascension on the premises liability claim and remand for further proceedings consistent with this opinion …,” the Court of Appeals held.
Concurrence: Allegations ‘Sufficient’
Judge Yates, in a separate concurring opinion, stated: “I do not believe that Michigan premises-liability law allows for such a sweeping exemption from liability when the owner knows of the danger, but chooses to do nothing to warn or protect invitees who may suffer injuries at the hands (or claws or beaks) of wild animals, so I join the majority ruling that the trial court erred by granting summary disposition ….”
Unlike the dog in Tripp, “I acknowledge that the goose in this case … should be characterized as a wild animal subject to the doctrine of ferae naturae,” the judge said. “But I do not find that that characterization of the goose in this case is fatal to plaintiff’s premises-liability claim at this early stage of the proceedings.”
When the possessor of property “knows about the risk of a wild animal and the invitee lacks such knowledge, the property possessor has a duty to warn or protect the invitee,” Judge Yates explained. “In the second amended complaint, plaintiff alleges that Ascension knew about ‘the presence of the dangerous goose that had been viciously attacking passersby for several days prior to the subject incident, but failed to take measures to remove the goose and/or warn of its presence and threat of attack.’ Those allegations in the complaint are sufficient to survive summary disposition analysis under MCR 2.116(C)(8).”
In conclusion, Judge Yates acknowledged that some people “may find nothing inherently or actually dangerous about a goose, as opposed to a wild animal such as a wolf or a bear.” However, “the distinction between the danger presented by the goose in this case and a wolf or a bear is one of degree, not kind.”
Here, the goose “was sufficiently menacing to cause plaintiff to suffer a serious hip injury,” the judge explained. “Whether the goose was not dangerous enough to pose a threat to plaintiff, or whether plaintiff knew or should have known about the goose, must be developed during the discovery process.”
Dissent: Majority ‘Conflates’ Doctrines
“As it turns out, what is good for the goose is not always good for the gander,” Judge Boonstra wrote in his partial concurrence and dissent.
“The ‘goose’ here is the doctrine of domitae naturae, while the ‘gander’ is the doctrine of ferae naturae,” Judge Boonstra said. “Both are long-standing doctrines of our common law, but they are distinct doctrines, they apply in distinctly different ways, and they require distinctly different results in our legal system. But the majority conflates them, and in doing so it opens the floodgates to a potential gaggle of claims that are simply not recognized in the common law. Until now, at least. But the majority has now determined that those on whose land wild animals enter may find themselves subject to legal theories of liability that have never before been recognized in Michigan. They may find that their goose is indeed cooked. The majority accomplishes this by ignoring Michigan case law and by altering our common law despite lacking the authority to do so.”
Therefore, “I must … respectfully dissent from the majority’s reversal of the trial court’s order granting summary disposition in favor of defendant Ascension Genesys Hospital on plaintiff’s premises liability claim,” Judge Boonstra wrote. “I otherwise concur in the majority opinion.”
According to the judge, the majority “entirely ignores Glave’s preclusion of liability, in the ferae naturae context, unless the defendant exercised ‘dominion, control or possession’ over a wild animal. Instead, the majority misapplies Tripp v Baker, … a domitae naturae case, to this ferae naturae case.”
Pointing to “a number of problems with the majority’s reliance on Tripp,” Judge Boonstra said that, “most importantly,” the majority erred “by importing into the law of ferae naturae the distinctly different legal principles that apply in the context of domitae naturae. As this Court made clear in Glave, liability does not arise in the ferae naturae context ‘without exercising dominion, control or possession’ over the wild animal. … As in Glave, plaintiff made no such allegation in his complaint in this case. Consequently, plaintiff failed to state a claim on which relief could be granted, and the trial court properly granted summary disposition under MCR 2.116(C)(8).”
In conclusion, Judge Boonstra wrote: “I would … uphold and apply Michigan’s existing and well-established common-law doctrine of ferae naturae and affirm the trial court’s grant of summary disposition in favor of Ascension on [the plaintiff’s] premises liability claim. Because the majority does not do so, I respectfully dissent in that regard and otherwise concur in the majority opinion.”
