Minnesota Reports

LEWELLIN v. HUBER, 465 N.W.2d 62 (Minn. 1991) James
LEWELLIN, on Behalf of the HEIRS OF Chazdon LEWELLIN,
deceased, and James Lewellin, individually, Respondents, v.
Susan HUBER, et al., Petitioners, Appellants. No.
C5-90-75. Supreme Court of Minnesota. January 25, 1991.

Appeal from the District Court, Anoka County, Edward
Bearse, J. Page 63

Syllabus by the Court

As a matter of law there is no legal causation in this
case for absolute liability under the dog owner’s liability

J.D. Haas, Eden Prairie, for appellants.

William A. Erhart, Marvin & Erhart, Anoka, for respondents.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

This case concerns liability under the dog owner’s
liability statute, Minn.Stat. § 347.22 (1990). The
court of appeals ruled that a dog’s nonhostile behavior
which sets in motion a chain of events causing injury to a
person some distance away comes within the statute and may
impose liability on the dog owner. We disagree and reverse.

This case was presented to the trial court on
cross-motions for summary judgment based on stipulated
facts. Defendant-appellants Susan and Randy Huber owned a
6-month-old Golden Retriever. Before leaving on a vacation
trip, they arranged for defendant-appellant Tonia Stomberg,
16 years old, to “house-sit” and to care for their dog.

On July 6, 1987, Tonia was driving her automobile with the
dog in the back seat. The dog attempted to get in the front
seat by climbing between the bucket seats. In doing so, the
dog put its head in Tonia’s face and was “bugging” her.
Tonia was distracted, and while attempting to get the dog
settled, the car went off the road and ran over a
9-year-old boy, Chazdon Lewellin, who was lying in the
ditch. The boy was killed. “I looked up,” said Tonia, “[and
I] was going off the road and could not stop. I saw the boy
lying in the ditch sort of toward the road. I could not
stop and drove over him.”

The dog had a tendency to be “frisky,” but had never
attacked or bit anyone, nor had it ever demonstrated any
vicious propensities. On one occasion, while Mr. Huber had
the dog in the car, it tried to get in the front seat. As a
result, Mr. Huber usually restrained the dog in the back
seat by putting a seat belt through the dog’s collar. Tonia
was not aware of this. Tonia had played with the dog on
occasions before the accident without incident.

On the basis of these facts, the trial court ruled that
plaintiff trustee for the heirs of Chazdon Lewellin was
entitled to recover damages as stipulated against the
defendant dog owners for violation of the dog owner’s
liability statute. The court of appeals, in a split
decision, affirmed the application of the statute but
reversed and remanded for trial because “a genuine issue of
material fact exists as to intervening negligence of the
driver.” Lewellin v. Huber, 456 N.W.2d 94, 98 (Minn.App.
1990). We granted defendants’ petition for further review.

Minn.Stat. § 347.22 (1990) reads in part:

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.

The issue in this case is how should the statutory phrase
“attacks or injures” be Page 64 understood? Does any
conduct by a dog, no matter how innocuous, if it sets in
motion a chain of events causing injury to a person, result
in liability? Or is the ambit of liability something less?
We think it is something less.

The phrase “attacks or injures” must be understood within
its statutory context.[fn1] Minn.Stat. § 347.22
belongs to an “exceptional class” of statutes. Seim v.
Garavalia, 306 N.W.2d 806, 811 (Minn. 1981). As Seim
explains, liability is absolute. It makes no difference
that the dog owner may have used reasonable care;
negligence is beside the point. Past good behavior of the
dog is irrelevant. Neither the common law affirmative
defenses nor statutory comparative fault are available to
the defendant dog owner. (The owner does, however, have the
defenses of provocation and failure of the injured person
to conduct himself peacefully while in a lawful place.)
Whoever keeps or harbors the dog is subject to the
statutory liability for the “full amount of the injury,”
and the dog’s owner remains at all times primarily liable.
The cause of action is for personal injury, and only to
“the person so attacked or injured.” Legal causation is, of
course, one of the elements to be established for this
statutory cause of action.

“To attack” means “to move against with more or less
violent intent, implying aggressiveness in any sense and
the initiative in the onset.” Webster’s Third New Int’l
Dictionary 140 (1971). When a dog attacks, it bites; when
it bites a person, it attacks. But what did the legislature
mean when it added “or injures”?

Having in mind liability is absolute and the fact that in
the phrase “attacks or injures” the two verbs are in
tandem, it would appear that the legislature intended the
verb “injures” to cover a dog’s affirmative but
nonattacking behavior which injures a person who is
immediately implicated by such nonhostile behavior. This
was the conclusion reached, too, by the court of appeals in
a recent case, Boitz v. Preblich, 405 N.W.2d 907 (Minn.App.
1987) (recovery allowed under the statute when a dog ran
into a person and the person fell and was injured).

To put it another way, when a dog attacks a person without
provocation, there is no attenuated chain of causation
between the attack and the injury. The cause of the injury
sustained is itself the gist of the statutory wrong.
Similarly, it is intended that there be no attenuated chain
of causation when the dog “injures” a person, such as when
a dog exuberantly jumps upon or unintentionally runs into a
person and injures that person. This interpretation of the
statute is borne out by our case law and the statute’s
legislative history.

Ordinarily, a statute will not be construed to create
absolute liability unless it is designed to protect a
limited class of persons from their inability to protect
themselves. Compare Dart v. Pure Oil Co., 223 Minn. 526,
535-40, 27 N.W.2d 555, 560-62 (1947) (no absolute liability
because statute prohibiting sale of adulterated kerosene
was not to protect a limited class); with Zerby v. Warren,
297 Minn. 134, 140, 210 N.W.2d 58, 62 (1973) (violation of
statute prohibiting sale of glue to minors creates absolute
liability). In Seim, 306 N.W.2d at 812, however, we said,
“Although section 347.22 was not enacted to protect a
limited class of persons unable to protect themselves, we
hold that the legislature intended to impose absolute
liability upon a violator of the law for two reasons.”
(Emphasis added.) The first reason we gave for imposing
absolute liability is very significant for our purposes
here. We said that our case law construed the statute to
place the entire responsibility of injury on the dog’s
owner if the elements of the statute were met; and,
therefore, “except for the defenses already built into the
law, recovery is insured in all cases.” Id. (emphasis
added). Page 65

In other words, according to Seim, if the dog “attacks or
injures” a person, that person’s recovery (assuming the
statutory defenses are not applicable) is always assured
because proximate cause, as a practical matter, is not a
problem. Proximate cause is rarely a disputed issue because
the statutory phrase “attacks or injures” contemplates
action by a dog that directly and immediately produces
injury to the person the dog attacks or injures.

We need not decide if legal causation for purposes of the
dog owner’s liability statute under all possible scenarios
requires direct contact between the dog and the injured
person. It is enough to say here that legal causation for
absolute liability under the statute must be direct and
immediate, i.e., without intermediate linkage.[fn2]

This interpretation is also supported by the legislative
history of the dog owner’s liability statute. In
ascertaining legislative intent, “the occasion and
necessity for the law” as well as “the mischief to be
remedied” are to be considered. Minn.Stat. § 645.16
(1990). From tapes of legislative hearings, it is clear
that the legislature considered the statute to be designed
for the protection of people who are subject to attacks and
immediate harm from dogs, especially persons who come upon
private residential premises lawfully.[fn3]

Finally, it is significant that § 347.22 is not an
exclusive remedy for injuries caused by dogs. Also
available to an injured claimant is a cause of action
against the dog owner for common law negligence. See Ryman
v. Alt, 266 N.W.2d 504, 508 (Minn. 1978). In a common law
negligence action, the claimant can recover from the dog
owner by proving the dog owner failed to use reasonable
care in controlling the dog. In this common law setting,
the traditional concept of causation governs, i.e., all
injuries naturally and proximately resulting from the
negligence. But to elongate similarly the causal chain
under the “dog bite” statute would extend absolute
liability beyond its intended purpose and reach.

Courts have always used the tort doctrine of proximate
cause, as distinguished from causation in fact, to
implement public policy in establishing the parameters of
liability. Thus this court has frequently quoted Prosser’s
statement that, “[a]s a practical matter, legal
responsibility must be limited to those causes which are so
close to the result, or of such significance as causes,
that the law is justified in imposing liability. This
limitation is not a matter of causation, it is one of
policy * * *.” Prosser, The Minnesota Court on Proximate
Cause, 21 Minn.L.Rev. 19, 22 (1937), cited in, for example,
Butler v. Northwestern Hospital of Minneapolis, 202 Minn.
282, 288, 278 N.W. 37, 40 (1938); and Robinson v. Butler,
226 Minn. 491, 494, 33 N.W.2d 821, 823 (1948). In applying
Page 66 our dog owner’s liability statute, public policy
and legislative intent are best served by limiting
proximate cause to direct and immediate results of the
dog’s actions, whether hostile or nonhostile.

In this case a 6-month-old Golden Retriever, trying to get
from the back seat to the front seat of a car, puts its
head between the two bucket seats and into the driver’s
face, thereby distracting the driver, who in addition to
being the dog’s keeper was also charged with using due care
in the operation of her automobile. As the stipulated facts
then put it, “[w]hile attempting to get the dog settled,”
the driver lost control and the car went off the road,
fatally injuring another party, a child by the roadside.
There was no direct, immediate connection between the dog’s
behavior and the child lying in the ditch. The dog’s
conduct was directed at the driver of the car. The driver’s
subsequent efforts to handle the dog’s distracting but
nonattacking conduct introduced another link in the chain
of causation. Though there may be causation in fact here,
this chain of events is too attenuated to constitute legal
causation for the radical kind of liability that the
statute imposes. Consequently, we hold as a matter of law
there is no causation for absolute liability under §

We agree, however, with the dissenting judge on the court
of appeals panel that this case should be remanded to the
trial court to permit plaintiff to assert a negligence
cause of action if he chooses to do so.

Reversed and remanded.

GARDEBRING, J., took no part in the consideration or
decision of this case.

[fn1] The parties have cited cases from other jurisdictions
construing their dog owner liability statutes. We have
considered these cases, which vary in their interpretations
of their particular statutes, but, in the final analysis,
we find that our statute is best understood in light of its
own legislative history and our own established case law.

[fn2] All prior Minnesota appellate decisions have applied
§ 347.22 only to acts of dogs that involved direct
contact with the victim. See Bailey by Bailey v. Morris,
323 N.W.2d 785 (Minn. 1982) (dog bite); Seim v. Garavalia,
306 N.W.2d 806 (Minn. 1981) (dog bite); Gilbert v.
Christiansen, 259 N.W.2d 896 (Minn. 1977) (dog bite);
Verrett v. Silver, 309 Minn. 275, 244 N.W.2d 147 (1976)
(dog bite); Matson v. Kivimaki, 294 Minn. 140, 200 N.W.2d
164 (1972) (dog bite); LaValle v. Kaupp, 240 Minn. 360, 61
N.W.2d 228 (1953) (dog bite); Grams v. Howard’s O.K.
Hardware, 446 N.W.2d 687 (Minn.App. 1989) (dog bite); and
Boitz v. Preblich, 405 N.W.2d 907 (Minn.App. 1987) (dog
knocked down victim).

[fn3] During the enactment of the original statute in 1951,
the minutes of the House Judiciary Committee for February
7, 1951, show the bill’s proponents were four letter
carriers, a firefighter, a representative of tradespeople,
and the father of a child who had been bitten by a dog. The
minutes of the same committee for February 13 show the
committee discussed “the need for the bill as regards mail
carriers, service men, etc.”

In 1979 the statute was amended to extend its reach to
rural as well as urban areas and to make the owner
“primarily liable.” The sponsor of the amendment described
the bill to the Senate Judiciary Committee as a “very
simple bill * * *. It relates to people being injured by
dog bites.” (Hearing on S.F. 1042, Sen.Judiciary Comm.,
71st Minn.Leg., April 20, 1979, audio tape) (comments of
Senator Menning). The committee pointed out the purpose of
the 1951 law was to eliminate the “one free bite” rule of
common law; and throughout the discussion, the legislation
was referred to as the “dog bite” statute. Id.

YETKA, Justice (dissenting).

I respectfully dissent because I think that a plain
reading of the statute requires a finding that the dog
owner statute applies to this case. Thus, the case should
be remanded for trial on the question of whether there was
a proximate cause between the dog’s actions and the injury.
That is a question of fact for a jury to decide. If there
was, then liability attaches, and the only remaining
question is damages.

While I agree with the majority opinion that the
legislative history of the statute indicates that the
legislature was primarily concerned with dog-bite cases, in
drafting this statute, it was not so limited because the
statute indicates that liability will attach “if a dog,
without provocation, attacks or injures any person * * *.”
The statute does not say “attacks and injures;” it says
“attacks or injures.”

Moreover, other states with similar statutes have held the
owner liable in very similar circumstances. In Illinois, a
similar statute reads as follows:

If a dog or other animal, without provocation, attacks or
injures any person who is peaceably conducting himself in
any place where he may lawfully be, the owner of such dog
or other animal is liable in damages to such person for
the full amount of the injury sustained.

Ill.Ann.Stat, ch. 8, para. 366 (Smith-Hurd 1975 & Supp.
1990). The Illinois courts have interpreted this statute to
create two forms of liability on the part of dog owners:
one, by an aggressive violent action designed to inflict
injury and, two, by an action which is in itself harmless
but which, under a particular set of facts, results in
injury. Chittum v. Evanston Fuel & Material Co., 92 Ill.
App.3d 188, 191, 48 Ill.Dec. 110, 112-13, 416 N.E.2d 5, 7-8
(1980); Forsyth v. Dugger, 169 Ill. App.3d 362, 365, 119
Ill.Dec. 948, 950, 523 N.E.2d 704, 706 (1988).

Under chapter 8, paragraph 366, the plaintiff must
demonstrate four elements: “(1) injury caused by an animal
owned by the defendants; (2) lack of provocation; (3)
peaceable conduct of the injured person; and (4) the
presence of the injured person in a place where he has a
legal right to be.” Forsyth, id. at 365, 119 Ill.Dec. at
950, 523 N.E.2d at 706. In addition, the Illinois courts
also note that an “animal causes the injury of the person
if it is the proximate cause of the injury.” Id. In regard
to causation, the Illinois courts held that “[t]he question
of whether the injury was caused by the same independent
act of the Page 67 plaintiff or others is a question of
fact to be decided by the jury.” Taylor v. Hull, 7 Ill.
App.3d 218, 219, 287 N.E.2d 167, 168 (1972). In Taylor, a
driver was injured when he lost control of his car after
striking the defendant’s dog, which was running loose on a
road. The Taylor court held that the facts disclosed that
the dog performed an “overt act and was not a mere passive
force.” Id. at 220, 287 N.E.2d at 168 (construing an older,
but substantially similar, version of the Illinois dog-bite
statute). See also Bailey v. Bly, 87 Ill. App.2d 259, 231
N.E.2d 8 (1967) (the court refused to apply the statute to
a woman who tripped over defendant’s dog, stating that
there must be behavior on the part of the dog which caused
injury and that liability may not be imposed “as pure
penalty for dog ownership.” Id. at 262, 231 N.E.2d at 9).

Finally, the Illinois courts have also noted that chapter
8, paragraph 366 is not an absolute or strict liability
statute; thus, the common law defenses apply. Vanderlei v.
Heideman, 83 Ill. App.3d 158, 160-61, 38 Ill.Dec. 525,
526-27, 403 N.E.2d 756, 757-58 (1980).

The Oklahoma dog-bite statute now reads as follows:

The owner or owners of any dog shall be liable for
damages to the full amount of any damages sustained when
his dog, without provocation, bites or injures any person
while such person is in or on a place where he has a
lawful right to be.[fn1]

Okla.Stat.Ann. tit. 4, § 42.1 (West 1990).

The Oklahoma Supreme Court requires four elements to
establish liability under section 42.1: “(1) ownership; (2)
lack of provocation; (3) injury to the plaintiff by the
accused dog; and (4) lawful presence of the plaintiff on
the defendant’s premises at the time of the attack.”
Hampton v. Hammons, 743 P.2d 1053, 1058 (Okla. 1987); Hood
v. Hagler, 606 P.2d 548, 550 (Okla. 1979). Though Oklahoma
has not had to decide cases where there are attenuated
circumstances like those involved here or in the Illinois
cases, under the fourth prong of the test, it requires an
“attack.” Id. Thus, it appears that the Oklahoma court
reads its statute narrowly.

The Wisconsin Court of Appeals has recently expanded the
reading of the Wisconsin dog-bite statute, which provides
as follows:

(1) Liability for injury. (a) Without Notice. Subject to
s. 895.045 [contributory negligence statute], the owner of
a dog is liable for the full amount of damages caused by
the dog injuring or causing injury to a person, livestock
or property.

Wis.Stat.Ann. § 174.02 (West 1989). In Meunier v.
Ogurek, 140 Wis.2d 782, 412 N.W.2d 155 (Ct.App. 1987), a
woman was driving a tractor when the neighbor’s dog ran
under the rear axle. Startled, the woman “popped” the
clutch. The tractor rolled over backward, and the woman was
killed. The Wisconsin court interpreted the following
statute as creating strict liability on the part of the dog

The owner of a dog is liable for the full amount of
damages caused by the dog injuring or causing injury to a
person, livestock or property.

Wis.Stat. § 174.02(1)(a) (1981) (emphasis added). The
court found the statute unambiguous and concluded that the
statute sets forth the conditions under which a dog owner
is liable for damages caused by the dog. 140 Wis.2d at
786, 412 N.W.2d at 156.

The Wisconsin court in Becker v. State Farm, 141 Wis.2d
804, 416 N.W.2d 906 (Ct.App. 1987), had an opportunity to
interpret a later version of the same statute, which read:

The owner of a dog may be liable for the full amount of
damages caused by the dog injuring or causing injury to a
person, livestock or property. Page 68

Wis.Stat. § 174.02(1)(a) (1983) (emphasis added). In
Becker, a dog escaped from its penned enclosure and darted
onto a roadway, causing the plaintiff to drive off the
highway. The plaintiff claimed injury as a result of the

The court found the “may be liable” language ambiguous,
holding that the intent of the legislature, in changing the
language, was to clarify that comparative negligence applied
to the strict liability provisions of the statute. Id. at
814-15, 416 N.W.2d at 911. The court found, however, that
the statute does not carve out an exception for an
“innocent act” by a dog. The court noted the following:

Finally, Lincoln contends that failure to create this
exception will lead to absurd and unreasonable results in
certain hypothetical cases. For instance, Lincoln argues
that under a “no exception” strict liability approach, an
owner would be liable to a person who trips over a
sleeping dog or who is injured when startled by the mere
playful barking dog. * * * Harshness of result in certain
extreme situations is a social price sometimes paid for
the perceived benefits of the strict liability policy.

Id. at 817, 416 N.W.2d at 912. Thus, it appears that the
Wisconsin courts hold that an owner of a dog is liable for
injuries caused by the dog whether the dog is engaging in
an act of aggression or not.

Moreover, in this case, the owners knew of the dog’s habit
of attempting to crawl into the front seat of the car, thus
making it a still stronger case of liability.

Accordingly, I would affirm the court of appeals and
remand to the trial court for determination of proximate
cause as previously stated.

[fn1] At the time the Minnesota Legislature was considering
its dog-bite statute, the Oklahoma statute read as follows:

The owner or owners of any dog which shall, without
provocation, bite or injure any person * * * shall be
liable for damage to any person bitten or injured by such
dog to the full amount of the injury sustained.

Okla.Stat. tit. 4, § 42.1 (1947). See Minutes of the
House Judiciary Committee for February 7, 1951.