STATE OF MINNESOTA
IN COURT OF APPEALS
Alvin L. Lien,
Filed August 24, 1999
Ramsey County District Court
Mark S. Brown, Hanson, Lulic & Krall, 920 Second Avenue South, Suite 500, Minneapolis, MN 55402 (for respondent)
James R. Bell, Stringer & Rohleder, LTD., 1200 Norwest Center Tower, 55 East Fifth Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.
Appellant challenges the district court's denial of a motion for a new trial arguing that granting a motion in limine to exclude evidence of provocation under the dog bite statute was improper. We affirm.
On May 3, 1997, Witte asked Lien to inspect some kitchen cabinets for possible repairs. Before entering Witte's home, Lien asked if the dog was in the house, and Witte told him not to worry because the dog would not bother him. Lien followed Witte into the house. It is undisputed that as they came into the house Lien saw the dog, and that the dog did not bark or growl. Lien turned his attention to Witte and the dog bit him. Witte does not claim that Lien provoked the dog while in the house or immediately before the bite.
This appeal stems from the district court's denial of Witte's motion for a new trial. Witte requested a new trial because he was not allowed to bring in evidence of Lien's past provocation of the dog, which he believes is the reason his dog bit Lien. The district court granted Lien's motion in limine to exclude evidence regarding the past provocation because it was too distant in time and there was a lack of foundation with regard to the specific time the alleged events of provocation occurred. Therefore, the only issue at trial was a jury determination as to the amount of damages to award, if any. The jury returned an award of $11,683.
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.
When its elements are established, this statute imposes absolute liability upon the dog owner. Seim v. Garavalia, 306 N.W.2d 806, 812 (Minn. 1981). Neither common-law affirmative defenses nor statutory comparative fault are available to a dog owner under the statute; however, the dog owner may assert the defenses of provocation and failure of the injured person to conduct himself peacefully while in a lawful place. Minn. Stat. § 347.22. Section 347.22 belongs to an "exceptional class" of statutes. Seim, 306 N.W.2d at 811. It makes no difference that the dog owner may have used reasonable care; negligence is irrelevant. Past good behavior of the dog is also immaterial.
Provocation is the dog owner's defense to liability. Grams v. Howard's O.K. Hardware Co., 446 N.W.2d 687, 689 (Minn. App. 1989), review denied (Minn. Dec. 15, 1989). But whether the dog was provoked is an issue of fact. Bailey v. Morris, 323 N.W.2d 785, 787 (Minn. 1982). Here, Witte argues that he should have been able to introduce evidence of Lien's past conduct towards the dog, to create a jury question. Yet, the issue before us is neither whether the dog was provoked nor the meaning of the word "provocation" in the statute, as Witte argues. Rather the question is whether it was proper for the district court to exclude evidence of Lien's past provocation as too remote in time and for lack of proper foundation.
Witte's claim of error for granting the motion in limine is an evidentiary issue, which the district court has considerable latitude and discretion to decide. See Benson v. Northern Gopher Enters., Inc., 455 N.W.2d 444, 445 (Minn. 1990) (evidentiary rulings committed to sound discretion of district court).
Even when pressed by the district court, Witte could not specify a date or time when any witness saw the last act of provocation. The best evidence he could produce is that generally the acts of provocation occurred when Lien was in his backyard mowing his lawn approximately two or three weeks before the incident. In light of Witte's inability to establish his foundation, to offer any witness to a specific date of any previous incident or provocation, or to establish any direct connection between provocation by Witte and the bite, we conclude that the district court did not abuse its discretion in granting the motion in limine.