This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed November 20, 2007
Hennepin County District Court
File No. 27-CV-06-2246
Whitney L. Teel, Julia Lines, Woods & Thompson, P.A., 941 Hillwind Road Northeast, Suite 200, Minneapolis, Minnesota 55432 (for appellant)
John F. Angell, Louise A. Behrendt, Stich, Angell, Kreidler & Dodge, P.A., The Crossings, Suite 120, 250 Second Avenue South, Minneapolis, Minnesota 55401-2190 (for respondent)
Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from summary judgment, appellant argues that the district court erred in granting summary judgment because the district court did not consider whether respondent harbored the offending dog so as to be secondarily liable as a dog owner under Minn. Stat. § 347.22 (2006), and because there was a genuine issue of material fact as to whether respondent harbored the dog. Because (1) the district court analyzed whether respondent harbored the offending dog; and (2) there is no genuine issue of material fact as to whether respondent harbored the offending dog, who bit appellant in an area controlled by respondent’s tenant, we affirm.
Respondent Nathan Hodgeman owned a house and rented a main-floor bedroom to the owner of a pit bull. The dog owner paid $300 per month for the bedroom, use of common areas, and utilities. The rental agreement included the requirement that the dog owner keep the pit bull in the rented bedroom at all times, except when using the common areas of the house to take the pit bull outside. The dog owner was allowed to use the fenced back yard for the pit bull, but the dog owner fed and otherwise cared for the pit bull in the rented bedroom. Respondent provided the dog owner with a key to the front door of the house, and the dog owner had the only key to the rented bedroom.
In May 2003, appellant Joseph McLeod; the dog owner; and three other individuals were “hanging out” in the dog owner’s bedroom. Appellant sat on the floor and was petting the pit bull. The pit bull bit off a piece of appellant’s nose and caused severe injuries. Respondent was in his house that night; after learning of the dog bite the following morning, respondent told the dog owner to “get rid of the dog.” Shortly thereafter, the dog owner euthanized the pit bull.
Appellant brought a negligence action against respondent for injuries appellant suffered as a result of the dog bite. Respondent moved for summary judgment. The district court considered whether appellant established a genuine issue of material fact on the “question of whether [respondent] voluntarily and temporarily managed, controlled, or cared for [the] dog” to be liable under Minn. Stat. § 347.22 (2006). The district court granted the motion for summary judgment and dismissed the complaint with prejudice. This appeal follows.
D E C I S I O N
When reviewing an appeal from summary judgment, this court considers “whether there are any genuine issues of material fact” and “whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). When the district court grants summary judgment based on the application of a statute to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate court. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn. 1998). “[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
Appellant first argues that the district court did not properly analyze whether respondent was a “harborer” of the pit bull and only considered whether respondent was a “keeper” of the pit bull. Under Minnesota’s dog-bite statute, a person who owns a dog, including anyone harboring or keeping the dog, is liable for any injuries sustained by an unprovoked dog. Minn. Stat. § 347.22 (2006). A person is liable under section 347.22 if he “harbors or keeps a dog after accepting the delivery of possession and control from the legal owner.” Tschida v. Berdusco, 462 N.W.2d 410, 412 (Minn. App. 1990), review denied (Minn. Dec. 20, 1990). “Harboring means to afford lodging, to shelter or give refuge to a dog,” whereas a keeper “manage[s], control[s] or care[s]” for a dog as the actual dog owner would. Verrett v. Silver, 309 Minn. 275, 276, 244 N.W.2d 147, 149 (1976). Landlords who do not have control over the premises where a dog bite occurs are generally not liable as either harborers or keepers under the dog-bite statute. Gilbert v. Christiansen, 259 N.W.2d 896, 897–98 (Minn. 1977) (holding that apartment manager did not harbor or keep the offending dog and was not liable for the injuries sustained in tenant’s apartment); Wojciechowski by Wojciechowski v. Harer, 496 N.W.2d 844, 847 (Minn. App. 1993) (holding that landlord of a mobile home park was not an “owner” of tenant’s dog and could not “be held liable for damages if the dog attacks someone within the confines of the tenant’s lot”).
In its order, the district court noted the definition of “harboring or keeping a dog” and analyzed whether respondent controlled either the dog or the premises where the dog was kept. While the district court generally focused on whether respondent was a keeper of the pit bull, the order shows that the district court also considered whether respondent was a harborer of the pit bull. The district court analyzed the amount of control that respondent had over the premises where the dog bite occurred. In addition, the district court applied Gilbert—which directly addressed “harboring” under the dog-bite statute—to the facts in this case. See Gilbert, 259 N.W.2d at 897–98. Therefore, the district court properly considered whether respondent was a harborer or a keeper of the pit bull under the dog-bite statute when granting summary judgment.
Appellant also contends that there was a genuine issue of material fact regarding whether respondent harbored the pit bull because respondent provided lodging, shelter, and refuge to the dog by allowing the pit bull and its owner to live in his house. But again, a landlord generally does not harbor his tenant’s dog for purposes of dog-attack injuries that occur in an area under the control of the tenant. Gilbert, 259 N.W.2d at 897–98; Wojciechowski, 496 N.W.2d at 847. Here, it is undisputed that respondent relinquished control and possession of the rented bedroom to the dog owner. The dog owner paid rent, received the only key to the bedroom, and confined the pit bull to that room pursuant to the lease agreement. Although appellant contends that the bedroom door was open at the time of the attack and emphasizes the pit bull’s use of common areas to leave the house, appellant does not otherwise explain how these factors establish that respondent maintained control over the rented bedroom itself.
Appellant further contends that because respondent is an on-site landlord, the rationale in Verrett should apply. But in Verrett, the court held that there was an issue of material fact as to whether the homeowner harbored the offending dog because the dog owner was a house guest staying for an extended amount of time. 309 Minn. at 276–78, 244 N.W.2d at 148–49. Thus, in Verrett, there was a question of fact as to whether the homeowner relinquished control or possession of a particular area of the house to the guest dog owner. But here, respondent relinquished possession and control of the rented bedroom to the dog owner. These facts distinguish this case from Verrett, because a guest has fewer rights in, and the property owner maintains far greater control over, premises used by a guest as contrasted to a lessee. And appellant does not explain why respondent’s status as an on-site landlord precludes application of the rationale in Gilbert and Wojciechowski. Therefore, because the dog bite occurred in an area controlled by the dog owner, respondent was not a harborer of the pit bull so as to be secondarily liable under the dog-bite statute.
Because landlords are generally not liable for injuries inflicted by dogs in areas controlled by tenants, the district court properly applied the law to the undisputed facts of this case, and respondent was entitled to judgment as a matter of law.