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Defense Under Common-Law Negligence

Negligence of the bite victim is greater than 50%

Under Michigan's negligence rules, if a jury believes that a sober injury victim (in any type of case, be it an auto accident case, a premises liability/slip and fall case, or anything else), is more than 50% the cause of their own injuries, the jury is prohibited from awarding that person any monetary award. See MCLA §600.2959.

Intoxication as a Defense

If a jury finds that a person was intoxicated, and that as a result of ability impaired by alcohol or drugs of some type, the person was 50% or more the cause of their injuries, they get nothing. See MCLA §600.2955a. Picture the "happy drunk" at the party, the bite victim teases the dog and gets bitten (remember "provocation" is not a defense to common-law negligence). If a jury finds that as a result of their intoxicated state, the bite victim was at least 50% the cause of their own injuries, that bite victim gets nothing.

How Percent Negligent Affects Monetary Awards

The difference between "50% of the cause" v. "more than 50% of the cause", may seem like hair-splitting, but in the reality, the difference could not be more stark, whether the matter involved a dog bite, a slip and fall, or a motor vehicle accident.

What about bite victim negligence (aka "comparative negligence") between 0 - 49.99999999%? In those scenarios, the damages are reduced by the amount of negligence for which the bite victim is responsible. For example, if a jury awards $100,000.00, and finds the bite victim 30% responsible, that bite victim will get $70,000.00, which is $100,000.00, reduced by his 30% contribution of negligence.

Again, these negligence principles and defenses apply not just to dog bite cases, but in any case, in which negligence is claimed.

Learn more about Michigan Dog Bite Laws & Protections.

A dog owner will not be liable if it can be shown that the bite victim somehow provoked the dog. There is no hard and fast rule as to what constitutes provocation; it should be judged on a case by case basis, which means it should be decided by a jury, at time of trial, and not by a judge on a Motion for Dismissal (aka Motion for Summary Disposition; see Civil Court Procedure page)
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The term "common-law" merely refers to the body of law that has developed over time, from accumulating appellate court cases, dealing with specific subjects. Generally speaking, when a cases is appealed to a higher court, that higher court's ruling can have the force of law, because that higher court is interpreting what they consider to be the then current state of the law, on any particular subject. The term "common-law negligence" merely refers to the body of law that has developed over time, on the specific subject of negligence, its elements and defenses.
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Non-ownership of the dog, is a defense only to the strict liability provisions of MCLA §287.351. For example, if you are babysitting a dog, while its owner is out-of-town, and (heaven forbid) the dog attacks someone on your property, you cannot be sued under the strict liability provisions of the statute, nor can you sue the dog-sitter under the statute. However, you can sue and be sued, under a theory of common-law negligence, which is preserved in Michigan law under MCLA §287.288.
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