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STATE OF MICHIGAN COURT OF APPEALS

KALLIE ROESNER, Plaintiff-Appellant, V ROBERT TYLER and HELEN HOURDAKIS, Defendants-Appellees.

UNPUBLISHED December 14, 2010

No. 290948 Oakland Circuit Court LC No. 2007-085144-NO

KALLIE ROESNER, Plaintiff-Appellee, V ROBERT TYLER and HELEN HOURDAKIS, Defendants-Appellants. No. 293410 Oakland Circuit Court LC No. 2007-085144-NO

Before: MURRAY, P.J., and DONOFRIO and GLEICHER, JJ. PER CURIAM. This case presents the third appellate installment of a seven-year saga of strife in Oakland County horse country. Reminiscent of the historic feud between the Hatfields and the McCoys, these parties have fought with pleadings rather than guns. In the wake of their bitter quarrel, the litigants have left a trail of legal actions in a variety of courts, commissions and departments. The current chapter concerns events that unfolded when dogs owned by defendants, Robert Tyler and his wife Helen Hourdakis, spooked a horse being ridden by plaintiff Kallie Roesner. Plaintiff sued defendants, asserting negligence, strict liability and intentional tort claims. The circuit court dismissed the action in its entirety. We affirm in part, reverse in part, and remand. I. UNDERLYING FACTS AND PROCEEDINGS The discord between plaintiff and defendants originated with a property dispute. The parties own and reside on large abutting tracts of land on Delano Road in Oxford Township. In -1-

2003, plaintiff hired workers to clear underbrush on the property line, in preparation for erecting a fence. Later, plaintiff used a tractor to clear the same area. Tyler believed that plaintiff and the tractor had destroyed bushes on his land and requested that she "leave my property." Tyler recounted, "I finally told her take your tractor off my property or I will drag it through the fence line." Plaintiff recalled that Tyler threatened "to take my tractor and smash me and my fence to bits with it." On July 24, 2004, plaintiff filed a variance application with the Oxford Township Zoning Board of Appeals (ZBA), requesting a reduction of the side-yard setback on the property line she shared with defendants. At that time, plaintiff chaired the Oxford Township ZBA. In response to plaintiff's zoning application, Tyler, an attorney, filed a complaint in the Oakland Circuit Court against plaintiff, her husband, Oxford Township, and the ZBA, urging a halt of the zoning board process "until such time that the Court is satisfied that all necessary elements are in place in order to ensure a fair process."1 In August 2004, Tyler filed a separate action sounding in trespass premised on the tractor incursion onto his property. In the complaint, Tyler also averred that plaintiff was illegally conducting a riding academy and stable business on her premises.2 Plaintiff disqualified herself from considering her own variance application, and the ZBA denied the application. In 2006, Tyler's trespass action settled. But peace was not at hand, and on July 1, 2006, hostilities flared anew. That day, plaintiff and several family members rode their horses down the road fronting Tyler's property, at which time, according to plaintiff, Tyler glared at them. When plaintiff's riding party returned hours later, plaintiff described that Tyler smiled at them, "made a hand gesture," and one of Tyler's dogs "went nuts." Plaintiff testified that the dog had been hidden from view behind a bush before Tyler incited it to "lung[e]" at the riders. Plaintiff related that the dog "hit the end of the chain," but acknowledged that it did not leave Tyler's property. Plaintiff claimed that in response to the dog's actions, her horse "spun very abruptly" and "bolted forward," and that while struggling to remain in the saddle, she sustained injuries requiring a brief hospitalization. On July 28, 2006, plaintiff and several friends again rode past defendants' home. Plaintiff's dog, Mugsy, and a dog belonging to one of her friends, Teddy, accompanied the riding party. As the riders approached Tyler's driveway, plaintiff heard "a bang" emanate from the direction of defendants' house that sounded "[l]ike a door closing." Plaintiff then saw two of

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The complaint identified the plaintiffs as "Residents of Charter Township of Oxford."

In yet another case, Tyler sued plaintiff in September 2007 for defamation, "intentional actions," abuse of process, malicious prosecution, civil stalking, and intentional infliction of emotional distress. The Oakland Circuit Court summarily dismissed Tyler's claims, and this Court affirmed. Tyler v Roesner, unpublished opinion per curiam of the Court of Appeals, issued June 8, 2010 (Docket Nos. 286918, 287401, 288239, 2888240). In Roesner v Hutchings, unpublished opinion per curiam of the Court of Appeals, issued May 6, 2010 (Docket No. 289187), this Court considered another dispute arising generally from the neighborhood feud.

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defendants' dogs, Eli and Evie, leap into the road.3 A car swerved to avoid the dogs, and plaintiff's horse spun. Plaintiff testified that in "[l]ess than three seconds" she regained control of the horse. Meanwhile, plaintiff saw Eli bite Mugsy in the neck and leg, and observed Evie bite Teddy. Hourdakis then emerged from defendants' home and called the dogs. Plaintiff contends that she suffered serious injuries as a result of this encounter with defendants' dogs, including a broken nose, a wrist injury, whiplash and a herniated disk. In August 2007, plaintiff commenced the instant action in the Oakland Circuit Court.4 Her complaint asserted seven counts: (1) common-law negligence, (2) negligent violation of the state leash law, MCL 287.262, (3) common-law strict liability, (4) assault, (5) assault and battery, (6) stalking, and (7) intentional infliction of emotional distress. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8) and (10). Plaintiff filed a (C)(10)-based cross-motion for partial summary disposition, contending that as a matter of law defendants had violated MCL 287.262 and bore strict liability for their dogs' conduct. In a written opinion and order entered on February 25, 2009, the circuit court granted defendants' motion for summary disposition and denied plaintiff's cross-motion. In July 2009, the circuit court denied defendants' motion for costs and fees. Both sides now appeal. II. SUMMARY DISPOSITION STANDARD OF REVIEW Plaintiff contests the circuit court's summary disposition ruling, which we review de novo. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Because the parties attached and referenced documentary evidence and deposition testimony beyond the pleadings, we treat their motions as governed by the standards set forth in MCR 2.116(C)(10). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen

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Eli is an English Setter. Evie is a Leonberger. Defendants also own a second Leonberger named Geppetto, who followed Evie toward the road. The parties dispute whether Gepetto ever left defendants' property.
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Between July 28, 2006 and the date plaintiff filed her complaint in this case, the parties fought several intermediary legal battles. Plaintiff submitted an incident report to Oxford Township concerning the July 28, 2006 events. The township apparently declined to take any action. In October 2006, plaintiff filed an ex parte personal protection order (PPO) application against defendants in the Lapeer Circuit Court, which denied the petition. Tyler commenced an action in the Oakland Circuit Court to prevent Oxford Township from seizing his dogs. Oxford Township agreed to forebear. On January 2, 2007, Tyler drove by plaintiff's property and allegedly made a shooting gesture with his hand. Plaintiff videotaped the incident and gave the recording to the Oakland County sheriff. The officer who viewed it concluded that the video did not reveal a shooting gesture. Tyler informed the officer that "if he did pause it may have been to see if [plaintiff's] chickens were in his paddock area again." On January 13, 2007, plaintiff filed an incident report with the Oakland County sheriff, speculating that Tyler had poisoned three of her chickens.

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Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh, 263 Mich App at 621. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich at 183. III. LEASH LAW CLAIM Plaintiff first challenges the circuit court's summary dismissal of her claim under MCL 287.262, the Dog Law of 1919, which provides in relevant part: It shall be unlawful . . . for any owner to allow any dog, except working dogs such as leader dogs, guard dogs, farm dogs, hunting dogs, and other such dogs, when accompanied by their owner or his authorized agent, while actively engaged in activities for which such dogs are trained, to stray unless held properly in leash.[5] The circuit court reasoned that the dogs had not run into the road without defendants' permission, and thus defendants did not violate the statute because "they did not `allow' their dogs to leave the property." The court opined that "although defendants' dogs, like Plaintiff's dog was [sic] off their property without a leash, the Court finds that there was no violation of the statute." Plaintiff maintains that the evidence indisputably establishes a statutory violation, giving rise to a presumption of negligence and meriting partial summary disposition in her favor. Given that no evidence reflects that defendants' dogs strayed unleashed during the July 1, 2006 incident, or that Tyler ever allowed any of his dogs to stray from defendants' property, the circuit court properly granted Tyler summary disposition of the leash law claim. However, available evidence agrees that on July 28, 2006, Hourdakis allowed Evie and Gepetto to go outside without a leash. As Hourdakis testified at her deposition: I had been out in the yard doing work. Came in to clean up and cool off. Reached down, got the tether through the door, hooked up Eli, slid the sliding glass door open, let Evie and Gepetto out, at which time Evie bound[ed] down the stairs. And a black dog was on my property close to the dining room patio area. Evie was barking. I called for her to come.

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In a rare show of agreement, the parties refer to this statute as the leash law. We adopt that term.

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Next thing I know, Evie is heading towards the road; Gepetto is following her. I am now running after my dogs. ... I look up. I see three horses. I see two other dogs, including the black dog, up with the riders. I grab Evie by the collar, proceed to walk across the road, grab Gepetto by the collar, who is on my property, go to the house, put them in, get Eli, take him off his tether, put him in the house. In Zeni v Anderson, 397 Mich 117, 143; 243 NW2d 270 (1976), the Supreme Court instructed: An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute has established a legally sufficient excuse. This Court in Cassibo v Bodwin, 149 Mich App 474, 476-477; 386 NW2d 559 (1986), considered whether a violation of the leash law could establish a rebuttable presumption of negligence. The defendants' dog in Cassibo "ran loose," causing the plaintiff son to lose control of his bicycle and fall to the pavement, where a vehicle struck him. Id. at 476. The plaintiffs neglected to plead a violation of MCL 287.262, and the trial court denied their motion to amend the complaint. Id. This Court held that the trial court had erred in not permitting the plaintiffs to amend their pleadings to allege a violation of the leash law, explaining, "Whereas a violation of an ordinance is only evidence of negligence, violation of a statute creates a rebuttable presumption of negligence." Id. at 477. Violation of the leash law thus requires the offending party to overcome a presumption of negligence. We reject the circuit court's interpretation of the statute as excusing liability if a dog strays without the owner's permission. MCL 287.262 commands that an owner may not "allow any dog ... to stray unless held properly in leash." "The word `allow' is defined in The American Heritage Dictionary of the English Language as `to let do or happen; permit.'" Town & Country Lanes, Inc v Liquor Control Comm, 179 Mich App 649, 657-658; 446 NW2d 335 (1989). Here, Hourdakis undisputedly permitted Evie to go outside defendants' home without a leash. Hourdakis did not necessarily anticipate that the dogs would leave defendants' property, but the statute's mandate that an owner maintain her dog on a leash qualifies as unambiguous and unconditional. We find further support for our conclusion in Trager v Thor, 445 Mich 95, 106 n 12; 516 NW2d 69 (1994), where our Supreme Court instructed, "A duty to constantly control an animal may be imposed by statute, such as the obligation to properly hold a dog in leash. MCL 287.262 . . . . See also Rickrode [v Wistinghausen, 128 Mich App 240, 247; 340 NW2d 83 (1983)] (the violation of a city ordinance requiring cats to be kept confined or leashed is evidence of negligence)."

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At oral argument, counsel for defendants urged that the leash law lacked applicability to these facts because Evie had not truly "strayed," as prohibited by the statute. Again, however, we find the statutory language unambiguous and fatal to defendants' contention. Webster's New World Dictionary, Second College Edition (1970) defines "stray," in pertinent part, as "to wander from a given place, limited area, direct course, etc., esp. aimlessly; roam; rove." The record evidence supports that when Hourdakis opened the door, she allowed Evie to wander away from the house and rove unleashed in the neighborhood. That Hourdakis ran after the dogs when she heard a commotion does not alter the fact that she freed the dogs from the house without restraints, and the dogs became free to roam. Because the facts establish a colorable violation of MCL 287.262, the circuit court incorrectly granted defendants summary disposition of plaintiff's leash law claim. Notwithstanding that plaintiff has established a possible leash law violation, she is not entitled to summary disposition with respect to this claim. The violation of a penal statute "establishes only a prima facie case of negligence, a presumption which may be rebutted by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case." Zeni, 397 Mich at 129-130 (footnotes omitted). In Zeni, the Michigan Supreme Court examined the assured clear distance provision and other statutes creating rebuttable presumptions, and concluded that the alleged wrongdoer should have "an opportunity to come forward with evidence rebutting the presumption of negligence." Id. at 143. Although a penal statute violation gives rise to a presumption of negligence, the finder of fact must ascertain whether "a legally sufficient excuse" exists for the statutory violation. Id. If an excuse is found, "the appropriate standard of care then becomes that established by the common law." Id. Hourdakis submits that she did not anticipate that the dogs would leave the property, and that Evie did so only because one of plaintiff's unleashed dogs had illegally entered onto defendants' land. Consequently, a jury must decide whether the circumstances present evidence rebutting the presumption of negligence arising from Hourdakis' apparent violation of the leash law. IV. STRICT LIABILITY Plaintiff next challenges the circuit court's decision to grant defendants summary disposition of her strict liability claim, asserting that defendants' dogs had "dangerous propensities" and posed a risk of harm to people and animals. At common law, strict liability for harm done by an animal attaches when three elements exist: "(1) one is the possessor of the animal, (2) one has scienter of the animal's abnormal dangerous propensities, and (3) the harm results from the dangerous propensity that was known or should have been known." Trager, 445 Mich at 99. In plaintiff's estimation, "[t]he undisputed facts" establish all three elements. The record belies plaintiff's assertion. Despite that defendants' Leonbergers are large dogs, weighing 160 and 80 pounds, no record evidence suggests that either animal ever exhibited "abnormal[ly] dangerous propensities." Rather, the evidence reveals that all three of defendants' dogs generally conducted themselves in a manner entirely consistent with normal canine

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behavior. The dogs barked, chased small animals, and behaved in protective fashion around family members. We have found no evidence of record substantiating that the Leonbergers had ever left the property before the July 28, 2006 affray, or had ever previously disrupted a horse's travel on Delano Road.6 After our careful review of the voluminous record evidence concerning defendants' dogs, we detect no basis whatsoever for a finding that they harbored abnormally dangerous propensities. Therefore, we affirm the circuit court's grant of summary disposition to defendants with regard to plaintiff's strict liability claim. V. GENERAL NEGLIGENCE Plaintiff further asserts that the circuit court erred by summarily dismissing her general negligence claim. In granting summary disposition of this count, the circuit court ruled that because no evidence suggested that defendants' dogs posed an unreasonable risk of harm, defendants owed no duty to keep the dogs under constant control: There is no evidence that Defendants' dogs ever charged and/or attacked any riding party before. In fact, except for a few isolated incidents, years before the events at issue here, Defendants' dogs remained on their property. And because their dogs had no known dangerous propensities and had never injured a person or dog before, Defendants had no duty to keep their dogs under constant control . . . . In Trager, 445 Mich at 104, our Supreme Court adopted 3 Restatement of Torts, 2d,

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