Wrong Standard Applied In ‘Dangerous’ Dog Case: Euthanasia Order Vacated

In this case involving the ordered euthanasia of an alleged “dangerous” dog, the trial court’s decision was erroneous because it failed to properly apply an “objective reasonable-person standard,” the Michigan Court of Appeals has ruled in a published and binding opinion.

The defendant in In re Chance (Docket No. 373223) was the owner of an 80-pound male American Bulldog named Chance. The dog bit a guest who was at the defendant’s home. Most of the key facts in the case were undisputed, except whether the guest was “waving a shoe” when Chance bit her. It was alleged that when the guest noticed that her shoe was on the floor next to Chance, she “got down on the floor, put her face within less than six inches of Chance’s face, and sternly scolded him in a loud voice.” Chance then “bit off” part of the guest’s nose. Thereafter, the plaintiff filed a complaint pursuant to MCL 287.322, alleging that Chance was a dangerous animal that should be euthanized.

The 72nd District Court (St. Clair County) found the guest did not provoke Chance and had suffered a “permanent and serious disfigurement.” The district court held that Chance was a “dangerous animal” and issued an order that he be euthanized. The St. Clair County Circuit Court affirmed, and also denied the defendant’s motion for relief from judgment, which alleged there were new photographs of the guest, showing that she was no longer disfigured.

The Court of Appeals – pointing out there was “no published authority interpreting or applying the definition of ‘provoke’ set forth in MCL 287.321(d)” – reversed the circuit court’s order of affirmance, vacated the euthanasia order and remanded the case to the district court.

“The district court … relied in part on the guest’s subjective thoughts or feelings in concluding that her actions did not constitute provocation,” the Court of Appeals said. “By failing to apply a purely objective standard, the district court misconstrued or misapplied the statutory definition of ‘provoke’ in MCL 287.321(d).”

Judge Michael J. Riordan wrote the opinion, joined by Judge Michael F. Gadola and Judge Anica Letica.

‘Purely Objective Standard’ Not Applied

On appeal, the defendant argued the district court’s decision regarding provocation was erroneous. Specifically, the defendant asserted the district court did not apply an “objective reasonable-person” standard.

“We agree,” the Court of Appeals said, citing MCL 287.322. That statute says, in relevant part: “(1) Upon a sworn complaint that an animal is a dangerous animal and has caused serious injury or death to an individual or has caused serious injury or death to a dog, a district court magistrate, district court, or municipal court shall issue a summons to the owner ordering him or her to appear to show cause why the animal should not be destroyed. … (3) After a hearing, if the animal is found to be a dangerous animal that caused serious injury or death to an individual or a dog, the district court magistrate, district court, or municipal court shall order the destruction of the animal, at the owner’s expense. … [Emphasis added.]”

The Court of Appeals also noted that MCL 287.321(a) defines a “dangerous animal” as: “ … a dog or other animal that bites or attacks a person. … However, a dangerous animal does not include any of the following: … (ii) An animal that bites or attacks a person who provokes or torments the animal. [Emphasis added.]”

The Court of Appeals further pointed out that MCL 287.321(d) defines the term “provoke” and says it means “to perform a willful act or omission that an ordinary and reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal. … (emphasis added).”

“Until today, there is no published authority interpreting or applying the definition of ‘provoke’ set forth in MCL 287.321(d),” the Court of Appeals observed. “Application of principles of statutory interpretation leads to the conclusion that the district court failed to properly construe or utilize this statutory definition.”

Here, the question was whether Chance was “provoked” and, if he was, “Chance would not constitute a ‘dangerous animal,’” the Court of Appeals explained, again emphasizing the definition of “provoke.” Meanwhile, the term “’ordinary and reasonable person’ is a legal term of art that denotes an objective standard. … The legal meaning of such terminology was materially the same in the 1980s, when MCL 287.321 was enacted by 1988 PA 426 .… The reference to an ‘ordinary dog’ in MCL 287.321(d) also indicates that an objective standard applies.”

Therefore, “the district court should have applied a wholly objective standard in determining whether the guest’s actions constituted provocation,” the Court of Appeals wrote. “That is, the district court should have considered whether getting down on the ground and putting one’s face less than six inches from the face of a large dog that had a chewable object, such as a shoe, that had been next to the dog, while simultaneously scolding the dog in a loud voice while possibly waving a shoe above the dog’s head, constituted ‘a willful act or omission that an ordinary and reasonable person would conclude is likely to precipitate the bite or attack by an ordinary dog or animal.’ MCL 287.321(d) (emphasis added). The district court’s analysis of provocation was instead based at least in part on subjective considerations.”

According to the Court of Appeals, the district court stated in its reasoning: “Now it’s been mentioned by counsel, kind of that common wisdom is, is that, you know, you should – if it’s not your dog, you shouldn’t get down and put your face next to another dog’s face; and that’s kind of, I guess, you know, common wisdom among dog owners. It’s not – it’s something that a lot of people kind of shy away from. However, in this case, [the guest] obviously felt that having known the dog for years and being over [to] the house, she thought that it was – she felt familiar enough with the dog to feel comfortable doing that. In any event, just because somebody doesn’t follow this common, kind of wisdom, and puts their dog [sic: face] next to another dog’s face, that doesn’t mean that it’s automatically provocation or somehow that it’s tormenting the dog. [Emphasis added.]”

Thus, the district court “relied in part on the guest’s subjective thoughts or feelings in concluding that her actions did not constitute provocation,” the Court of Appeals said. “By failing to apply a purely objective standard, the district court misconstrued or misapplied the statutory definition of ‘provoke’ in MCL 287.321(d).”

Based on the foregoing, “[w]e … reverse the circuit court’s order of affirmance, vacate the district court’s order, and remand the case to the district court to make the appropriate findings and decision under the objective standard required by MCL 287.321(d),” the Court of Appeals concluded.