STATE OF MICHIGAN
15TH JUDICIAL DISTRICT COURT
CITY OF ANN ARBOR,
Plaintiff.
v
SEIKO IKUMA,
Defendant.
Case No. 98-3558-GC
Hen. Julie Creal Goodridge
OPINION AND ORDER AFTER SHOW CAUSE
HEARING
Held in Ann Arbor, Michigan
on October 15, 1999
This matter is before the Court on the City of Ann Arbor's Complaint
against Seiko Ikuma, seeking the destruction of her dog, Ato. The City
brings the Complaint pursuant to MCL 287.286a (The Dog Law) and MCL 287.322
(The Dangerous Animals Act). Pursuant to the Circuit Court's direction
in this matter, these statutes are to be read in pari materia. The
Circuit Court, in its' Opinion dated April 30, 1999, further stated:
For these reasons, this Court finds it appropriate that the lower
Court, when
considering whether to destroy Ato pursuant to a show cause order brought
pursuant to MCLA 287.286a(1), must evaluate whether the dog is a dangerous
animal as defined by MCLA 287.321(a), specifically including in that
evaluation
the caveats found in MCLA 287.321(a)(i)-(iv). Only if the dog is deemed
to be a
dangerous animal pursuant to the Dangerous Animal Act shall the lower
Court
order the dog destroyed. (Opinion of Timothy Conners, Circuit Court
File 99-
10457-AV, page 6)
The Dog Law of 1919 provides:
Section 26a. (1) A district court magistrate or the district or common
pleas court
shall issue a summons similar to the summons provided for in section
20, to show
cause why a dog should not be killed, upon a sworn complaint that any
of the
following exist:
(c) A dog, licensed or unlicensed, has attacked or bitten a person.
(MCLA 287.286(a))
The definition of a "dangerous animal" as referenced by the Circuit Court
is defined by statute, which statute states
(a) "Dangerous animal" means a dog or other animal that bites or attacks
a
person, or a dog that bites or attacks and causes serious injury or
death to another
dog while the other dog is on the property or under the control of
its owner.
However, a dangerous animal does not include any of the following:
(i) An animal that bites or attacks a person who is knowingly trespassing
on
the property of the animal's owner.
(ii) An animal that bites or attacks a person who provokes or torments
the
animal.
(iii) An animal that is responding in a manner that an ordinary and
reasonable
person would conclude was designed to protect a person if that person
is
engaged in a lawful activity or is the subject of an assault.
(MCLA 287.321 (a))
The term "provoke" is also defined in the Dangerous Animal Act, which states:
"'Provoke' means to perform a willful act or omission that an ordinary
and reasonable person would conclude is likely to precipitate the bite
or attack by an ordinary dog or animal." MCLA 287.321(d).
An evidentiary hearing was held before this Court on October 6, 1999, and
continuing to October 12, 1999. At this evidentiary hearing the following
facts were undisputed. First, Alex Newton was a substitute paper boy for
the Ann Arbor News; Second, on a warm August Sunday morning he opened a
screen door on the residence belonging to the Ikumas and the dog, Ato,
which had an open interior door. He deposited the newspaper on the foyer
floor. Third, Ato bit Alex Newton after having, in essence. chased him
down a portion of the front walk. Fourth, the bites to Alex Newton were
significant, requiring extensive medical attention, and follow-up care.
Fifth, Ato also bit Linda Morin, who is a dog trainer, who was, at the
time of the bite, performing an assessment on Ato's temperment.
The Defendant argues that Ato is not a dangerous animal. because the
conduct of both Alex Newton and Linda Morin, fall within the exceptions
to the definition of dangerous animal. Defendant contends that Alex Newton
was "knowingly trespassing" on the Ikumas' property when bitten by Ato,
that he "provoked" Ato by dropping the newspaper on the interior foyer,
and by opening the screen door to the residence, when the interior door
was also open, and that Ato responded to Alex Newton's opening of the door,
and placing the newspaper inside, in a manner designed to protect a person,
specifically, his owner.
In analyzing these caveats to the definition of a dangerous animal,
and the application of those caveats to the facts in this case, this Court
will limit its scope to the bites that Ato inflicted on Alex Newton, and
the circumstances surrounding that attack.
MCL 287.321(a)(i) declassifies an animal as a dangerous animal if that
animal bites or attacks a person who is "knowingly trespassing" on the
dog owner's property. The Defendant presented testimony
that the Ann Arbor News training
manual for news carriers instructed carriers not to open
doors which were the last barrier to the residence. There was also testimony
that it was not customary for the carrier to open a screen door when the
inside door was open. Alex Newton testified that he thought it permissive
and appropriate to open the screen door
in this manner, and to place the newspaper on the foyer of
the residence.
Closing arguments spent a portion of
time addressing the definition of trespassing,
and arguing on which definition of trespass,
either criminal or civil, should apply
here. This Court does not believe this
issue needs to be addressed. For
purposes of this Court's consideration, Alex
Newton is considered a "trespasser". The
question then turns to whether he was
a "knowing trespasser". "[K]nowingly" as used
in this statutory definition clearly references
the state of mind of the person
alleged to have been trespassing. To
interpret this statute otherwise would
require the Court to attempt to
interpret the mental state of the
animal involved, which is clearly not
the intent of the drafters. Alex Newton
testified in this case that he
believed that he had permission to
be on the Ikumas' porch, and that
he believed that he delivered the
newspaper in an appropriate manner. He
gave absolutely no indication, or testimony,
that he believed he did not have
authority to act as he did.
Accordingly, this Court finds that Alex
Newton was not a person who was
knowingly trespassing, and this exception
to the definition of a dangerous dog
does not apply.
MCL 287.321(a)(ii) excludes from the
definition of a "dangerous animal" an animal
that bites or attacks a person
who provokes or torments the animal.
There was not any testimony indicating
that Alex Newton tormented the dog.
The sole issue is whether Alex Newton's
conduct on the morning of the
news delivery "provoked" Ato into biting
and attacking Alex Newton. As defined
by the Dangerous Animal Act, "provoked"
requires a willful act or omission by
the victim, which an ordinary person
would conclude is likely to result in
a bite or attack.
This Court finds that Alex Newton's
act of delivering the newspaper in
the manner in which he delivered it,
was not a "willful act . . . likely to
precipitate the bite or attack by an
ordinary animal." There was not any
testimony that Alex Newton did anything
else, to either call attention to
himself or alert the animal, other
than to open the door and deliver
the newspaper inside. Such conduct could
not be expected by a reasonable person
to cause such a severe attack by
an ordinary dog. Therefore, this Court
finds that the second statutory exception
to the definition of "dangerous animal"
does not apply.
MCL 287.321(a)(iii) excludes from the
definition of a "dangerous animal" an animal
that is responding in a manner that
an ordinary and reasonable person would
conclude was designed to protect a person
if that person is engaged in
a lawful activity or is the subject
of an assault. In this case,
the Ikumas were engaged in the
lawful activity of occupying their residence,
although they were not immediately present
when Ato attacked Alex Newton There
is not allegation, nor evidence, that
either of the Ikumas were the subject
of an assault, or under the threat
of an assault. The question then
becomes, whether Ato's behavior was,
as seen by an ordinary and reasonable
person, designed to protect the Ikumas.
This Court finds that Ato's behavior
in this instance was with a ferocity
in excess of that needed to reasonably
protect the Ikumas. Further, this Court
finds that a reasonable and ordinary
person could not have foreseen such
behavior from a family dog, in response
to a newspaper delivery. This Court
found persuasive both Dr. Butman's
and Linda Morin's testimony relating to
when dogs should bite. Linda Morin
concluded that "guard dogs" should bite.
Dr. Butman concluded that no dogs
should bite. It is undisputed that Ato
was not trained as a guard dog,
and had been raised as a family
dog. For those reasons, this Court
finds that the third exception to
the definition of "dangerous animal" does not
apply.
This Court finds that Ato is a
"dangerous animal" pursuant to the definition
in MCL 287.321(a).
The Defendant argues that in order
to euthanize Ato, that this Court
must find that "serious injury" had
resulted from Ato's attack on Alex
Newton. This is a requirement of the
Dangerous Animal Act. However, the City
brought its Complaint pursuant to the
Dog Law of 1919. This Circuit Court
held, in an opinion on appeal,
that this Court should apply the standards
of the Dog Law of 1919, using
the definitions found in the Dangerous
Animal Act.
The Dog Law of 1919 requires only
that a dog have attacked or bitten
a person. MCL 287.286a(c). The fact that
Ato attacked and bit Alex Newton
is undisputed. As Ato has been found
to be a "dangerous animal", this Court
finds that the Defendant has not met
its burden in showing why the
animal should not be destroyed, and
Ato is ordered to be euthanized, by
appropriate animal care providers, at
the expense of the Defendant.
The Plaintiff shall prepare and present
for signature an Order consistent with
this Opinion.
/S/ Julie Creal Goodridge
DATED: October 15. 1999
Hon. Julie Creal Goodridge, District
Judge
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