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Why Do I Need to Care About Whether Claim is Under Dog Bite Statute & Common-Law Negligence?

Ultimately, you will not need to know; that is what you are hiring me to know. It is important though, for you to know that you still have a claim against a dog-sitter, e.g., where the dog-sitter is the one with assets and/or insurance, and the dog owner does not. Maybe you do not want to press a claim against the owner, for whatever reason, but you feel that the dog-sitter is the greater threat.

Another reason for us to be concerned as to how to proceed, is that you are concerned about a potential provocation defense succeeding under the statute, leaving you empty handed. By making a claim under common-law negligence as well, you might well be protected from being tossed out of court by a provocation defense under MCLA §287.351. However, bear in mind that if you are concerned about a provocation defense, you will also need to be concerned about the damages reduction provisions of MCLA §600.2955a and MCLA §600.2959.

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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