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Premises Liability — Dog — Fence

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Where a property liability grievance was submitted based upon a dog bite, the high court need to have rejected summary personality due to the fact that the offender homeowner stopped working to fulfill their concern revealing that the unsafe conditions on the land were open and apparent.

“In this case including injuries from a dog bite, the celebrations appeal the high court’s order partly giving summary personality under MCR 2.116(C)(8) and (10). Plaintiff, Chester Tripp III, likewise appeals the high court’s order rejecting his movement for reconsideration. Because there is no mistake needing our turnaround, we verify.

“Tripp submitted this claim after offender, Carrie Baker’s, dog bit Tripp on his hand while he was visiting his mom’s home. Tripp’s mom’s home lies on Cairns Street in Tecumseh, Michigan (the ‘Cairns Street property’).

“Baker’s residence was near the Cairns Street property. Baker rented her residence from offender, Matthew Pollack. A chain-link fence confined the yard of Baker’s property. At some point, Matthew set up a wood personal privacy fence along part of Baker’s yard that dealt with the Cairns Street property.

“On the day in concern, Baker was having fun with her dog in the yard. She then went inside her home, leaving the dog alone in the lawn. At the exact same time, Tripp was cutting bushes in his mom’s yard. When Tripp positioned his hand on top of the chain-link fence for assistance, Baker’s dog apparently reached its head through a damaged part of the wood personal privacy fence and bit Tripp’s hand as it was resting on top of the chain-link fence. Tripp’s hand ended up being badly contaminated and he needed considerable treatment.

“Tripp submitted a problem, declaring liability versus Baker under Michigan’s dog bite statute, MCL 287.351, and for common-law neglect. He later on submitted a modified grievance versus accuseds, Matthew and Melissa Pollack (jointly, ‘the Pollacks’), declaring facilities liability for failure to preserve Baker’s property in sensible repair work. Baker and the Pollacks moved for summary personality. They competed that they were not responsible for Tripp’s injuries due to the fact that he was trespassing at the time. The Pollacks likewise asserted that the threat positioned by the dog was open and apparent.

“The Pollacks appeal the high court’s order that concluded there stayed a real concern of reality whether the chain-link fence lay entirely on Baker’s property. In their view, Tripp stopped working to refute their trespassing defense and, for that reason, summary personality was suitable on that basis. We concur.

“Tripp argues the high court erred in partly giving the Pollacks’ movement for summary personality due to the fact that the risks positioned by the opening in the wood fence and the dog were closed and apparent. He likewise competes the high court need to not have actually continued to evaluate the Pollacks’ open and apparent defense, having actually concluded there stayed a concern of reality concerning the trespassing claim. We concur in part and disagree in part.

“This Court has not just recently attended to whether a dog is a condition on the land for functions of facilities liability.

“Other states have actually likewise thought about the concern of whether a dog is a condition on the land for facilities liability functions.

“These authorities convince us to conclude that that a dog certifies as a ‘condition on the land’ for functions of facilities liability. A prima facie case of facilities liability developing from a dog bite needs a revealing that: (a) the dog is the condition on the land; and (b) that the offender understood the dog’s unsafe propensities. Using this guideline, we conclude Tripp’s grievance was facially-valid due to the fact that it fulfilled both of these requirements.

“That said, a landowner in a property liability action owes no responsibility to a visitor when the threat at concern is open and apparent.

“The Pollacks moved for summary personality, in part, due to the fact that the risks were open and apparent. Their movement for summary personality focused just on the open and apparent nature of the fence, however made no argument about the open and apparent nature of the dog.

“While the high court properly attended to the 2 conditions at concern, its conclusion was inaccurate. Tripp’s grievance plainly stated 2 risks — the dog and the fence — yet, the Pollacks’ movement for summary personality just attended to among these as open and apparent. As the moving celebrations, the Pollacks were needed to present documentary proof showing no authentic disagreement of reality. Because they produced no proof revealing that the dog was an open and apparent threat, they stopped working to fulfill their concern as the moving celebrations. It was unsuitable for the high court to identify sua sponte whether a concern of reality existed. In doing so, the high court stopped working to interpret the accusations in a light favorable to Tripp, the nonmoving celebration. The high court need to have rejected summary personality due to the fact that the Pollacks stopped working to fulfill their concern revealing that the unsafe conditions on the land were open and apparent.

“In sum, summary disposition should have been granted to the Pollacks regarding their trespassing argument. And, summary disposition was not proper as to their open and obvious argument. Although the trial court granted summary disposition on the wrong basis, this Court ‘will not reverse where the right result is reached for the wrong reason.’ Glazer v Lamkin201 Mich App 432, 437; 506 NW2d 570 (1993). Accordingly, we affirm the trial court’s dismissal of Tripp’s claims against the Pollacks.”

Tripp v. Baker; MiLW 07-106651, 9 pages; Michigan Court of Appeals released; Cameron, J., signed up with by Jansen, J., Borrello, J.; on appeal from Lenawee Circuit Court; Dominic N. Hamden for appellant; Steven A. Hicks for appellee.

Click here to read the full text of the opinion.

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