This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Camellia Robinson, a minor, by her mother

and natural guardian, Kimberly Robinson,



Donald George Robinson, et al.,


Filed December 29, 1998


Amundson, Judge

Concurring specially, Harten, Judge

Ramsey County District Court

File No. C7-96-11023

Jerome A. Ritter, Ritter & Fenske, Ltd., 461 University Avenue, St. Paul, MN 55103 (for appellant)

Timothy K. Masterson, Spence, Ricke & Thurmer, P.A., 325 Cedar Street, Suite 600, St. Paul, MN 55101 (for respondents)

Considered and decided by Davies, Presiding Judge, Amundson, Judge, and Harten, Judge.



Appellant seeks a new trial on the following grounds: (1) the district court improperly instructed the jury; (2) the jury's verdict was perverse and palpably contrary to evidence; and (3) the jury's verdict was a product of prejudice and passion. We affirm.


On July 14, 1996, then six-year-old appellant Camellia Robinson (Cammie) was vacationing with her father, Donald Robinson, and grandparents, Donald and Diane Robinson, at the family's cabin in Ontario, Canada. On this day, Cammie was playing on the floor, near or under the kitchen table, petting her grandparents' dog. The dog barked, prompting Cammie to run. She collided with the kitchen table and hit her face, sustaining a laceration from the tip of her nose through her entire upper lip. Cammie received stitches about her mouth and up through the tip of her nose.

Although the scar has faded, Cammie will have a permanent scar from the tip of her nose to the base of her upper lip. Although surgery can never make the scar completely disappear, plastic surgery would probably improve the scar's appearance.



Appellant Camellia Robinson argues that the trial court abused its discretion by giving an improper jury instruction. We will reverse a district court for errors in jury instructions only if the instruction destroys the substantial correctness of the entire jury charge, results in a miscarriage of justice, or leads to substantial prejudice of a party. Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974). Trial courts are allowed "considerable latitude" in fashioning instructions and selecting the precise language of the jury charge. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986) (citations omitted). Where instructions fairly and correctly state the applicable law, an appellate court will not grant a new trial. Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).

Appellant argues that the district court improperly instructed the jury with respect to Minn. Stat. § 347.22 (1996), which states:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.

This statute imposes strict liability on the owners of dogs, without proof of negligence or scienter. Boitz v. Preblich, 405 N.W.2d 907, 910 (Minn. App. 1987) (quoting Lavalle v. Kaupp, 240 Minn. 360, 363, 61 N.W.2d 228, 230 (1953)). In giving the jury its instruction with respect to this statute, the trial judge advised the jury as follows:

Minnesota law provides if a dog, without provocation, attacks or injures any person who is acting peaceably in anyplace where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injuries sustained.

* * * The statute applies to both hostile and non-hostile actions of a dog which cause injury, regardless of actual physical contact with the injured party. However, in order for the dog to have caused the injury within the meaning of the statute, there must have been affirmative conduct by the dog, which conduct was focused on the injured party. In addition, for the statute to apply, the actions of the dog must have directly and immediately produced the injury.

(Emphasis added). Appellant objects to the underlined "focus" language, arguing that the district court's instruction was improper because it required the jury to attempt to ascertain the dog's "intentions." Appellant further argues that such language was prejudicial and unnecessary because of her close proximity to the dog at the time directly preceding the injury.

The jury instruction "focus" language was derived from Mueller v. Theis, 512 N.W.2d 907 (Minn. App. 1994), review denied (Apr. 28, 1994). In Mueller, a driver was injured when he swerved his car in an attempt to avoid striking a "figure" in the road. Id. at 909. The figure turned out to be a 50-pound Walker hound. Id. After swerving, the driver went into the ditch and rolled, resulting in serious injuries to himself. Id.

In Mueller, this court held that for liability under section 347.22 to apply to the owner of the Walker hound, the dog's conduct must have been "focused on the injured party" and the injury must be "the direct and immediate result of that focus." Id. at 910-11. This court concluded that the mere presence of the dog in the road should not result in liability to his owners. Id. at 910. Mueller emphasized a 1991 supreme court decision holding that for absolute liability to apply under section 347.22, causation "must be direct and immediate, without intermediate linkage." Id. (citing Lewellin ex rel. heirs of Lewellin v. Huber, 465 N.W.2d 62, 65 (Minn. 1991)). The Lewellin language is also reflected in the district court's instruction.

Appellant attempts to distinguish Mueller from the present case by construing its "focus" language to apply only where a dog is in the middle of the road. Appellant further contends that the "focus" requirement should not apply where, as in this present matter, the injured party was in close proximity to the dog. Although we decline to apply Mueller as narrowly as appellant suggests, we are aware that the "focus" language can be troubling. The word "focused," as used in Mueller, means "[t]o direct towards a particular point or purpose" or "to concentrate attention and energy." The American Heritage Dictionary 703 (3rd ed. 1996). Unfortunately, the word "focus" introduces a subjective element into this strict liability statute, in that it compels the trier-of-fact to consider whether the subject dog was "directing" or "concentrating" its attention at the injured person. This appeal, however, is not a review of Mueller. The supreme court has declined review of Mueller, and it was therefore proper for the district court to take Mueller into account when drafting its jury instructions in the present case.

Additionally, this instruction, taken as a whole, is proper. Indeed, the instruction also advised the jury that physical contact between the dog and Cammie was unnecessary for liability to apply, but that the conduct must have "directly and immediately produced the injury." Despite the potential problems created by the "focus" language, the "focus" language did direct the jury to consider whether Cammie's injury resulted from more than the "mere presence" of the dog and as such, we affirm.


Appellant alleges that the jury's answers to the special verdict questions, finding no liability and failing to award any damages, are perverse and palpably contrary to the evidence.

On review, answers to special verdict questions will not be set aside unless they are perverse and palpably contrary to the evidence or where the evidence is so clear to leave no room for differences among reasonable people. The evidence must be viewed in a light most favorable to the jury verdict. If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed.

Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993) (citations omitted).

Where a jury verdict involves conflicting evidence, an appellate court must consider the evidence in a light most favorable to the verdict and sustain that verdict if possible, on any reasonable theory of evidence.

Dang v. St. Paul Ramsey Med. Ctr., Inc., 490 N.W.2d 653, 659 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). If a jury's conclusion that a defendant is not liable is supported by credible evidence, the jury's determination of inadequate damages to a plaintiff does not warrant a new trial. Hernandez by Hernandez v. Renville Pub. Sch. Dist. No. 654, 542 N.W.2d 671, 675 (Minn. App. 1996), review denied (Minn. Mar. 28, 1996).

A review of the record does not suggest that the jury's verdict was so perverse or so palpably contrary to the evidence to warrant a new trial. Testimony of the only witness to the incident, Kendall Feia, demonstrates that immediately prior to the incident, Cammie was petting the dog's back and this action did not seem to disturb him. Feia stated the dog turned, barked, and ran to the door. As Cammie turned to run away, she collided with the table. He observed that Cammie did not appear frightened by the dog, but rather, that her running away was more like a reaction. Cammie herself testified that she was not afraid of the dog. Further, because evidence was presented that when at the cabin the dog would spontaneously bark at things, such as the presence of another dog, chipmunks, or the sound of mice, there was evidence from which the jury could conclude that the dog's barking was not directed at Cammie.

Based on the evidence, viewed in the light most favorable to the verdict, the jury could have reasonably concluded that the dog's actions did not "directly and immediately" cause appellant's injury. Thus, it does not appear that the jury verdict is irreconcilable, perverse, or "palpably contrary" to the evidence.


Finally, appellant contends that this court should reverse the district court's ruling on her motion for a new trial. Appellant argues that she is entitled to a new trial because of improper jury instruction, a verdict contrary to the evidence, and a verdict that was the product of passion and prejudice.

This court will only reverse a district court's ruling on post-trial motions, such as motions for a new trial, for a clear abuse of discretion. Jack Frost, Inc. v. Engineered Bldg. Components Co., 304 N.W.2d 346, 352 (Minn. 1981). A new trial should be granted only where the verdict is

so contrary to the preponderance of the evidence so as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling, or caprice, instead of honestly and dispassionately exercising its discretion.

Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn. 1983).

We have already addressed appellant's challenge to the jury instructions and the jury's finding of no liability, finding these challenges do not merit a new trial. Additionally, there is no evidence that the jury was so swayed by passion and prejudice that it failed to honestly exercise its discretion. Further, our review of the record does not leave us with the impression that the jury failed to fully and fairly consider all of the evidence. Notably, the district judge, who had the benefit of hearing the witnesses first hand and weighing their credibility, found that the jury's verdict was not contrary to the evidence. The record does not demonstrate that the district court abused its discretion in denying appellant's motion for a new trial.


HARTEN, Judge (concurring specially)

Whereas I concur in the court's affirmance, I do not join the court's critique of Mueller v. Theis, 512 N.W.2d 907 (Minn. App. 1994), review denied (Apr. 28, 1994), which I find to be unnecessary dicta.