Woman attacked by dogs awarded double damages by Wisconsin appeals court

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by Charles Miller

Ann Schroeder was attacked by a pack of dachshunds. The dogs belonged to Jeffrey and Jody Kistner. In September of 2009, Schroeder arrived at the Kistners’ home with her show dog, Neko. When Schroeder knocked on the front screen, the Kistners’ eleven dachshunds rushed to the noise. Working in concert, the dogs pushed open the door and escaped. The dachshunds attacked Neko. When Schroeder tried to intervene, she was bitten on her hands and leg. The Kistners eventually pulled their dogs away.

Schroeder filed a personal injury lawsuit against the Kistners and requested the trial court allow her to pursue a double damages claim under Wisconsin’s dog bite law, Wisconsin Statutes section 174.02. The statute creates a strict-liability penalty scheme for owners whose dogs cause injury. Under § 174.02(1)(a), an owner is liable for the full amount of damages “caused by the dog injuring or causing injury to a person….” However, under § 174.02(1)(b), the owner is liable for double damages if he or she “was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.”

In support of her claim for double damages, Schroeder introduced evidence that the Kistners’ dogs had engaged in two previous attacks. The attacks involved two of the Kistners’ neighbors, John Hoiby and Michael Olson.

Hoiby testified the Kistners’ dachshunds attacked his dog in May or June of 2009, resulting in a puncture wound to the paw. Jeffrey Kistner was present when the attack occurred and recalled that at least one of the dachshunds involved in the attack would be a dog the Kistners still had when Schroeder was hurt. Hoiby stated he could not identify the specific dachshund that injured his dog because all the Kistners’ dachshunds looked alike

Olson testified he was attacked by the Kistners’ dogs prior to September 21, 2009. After being told the dogs were not out, Olson came into the yard to visit with Jeffrey Kistner. Olson and Jeffrey had talked for ten to fifteen minutes when the dogs appeared in the yard and attacked Olson. He was bitten three times, twice on the hand and once on the calf. He stated he could not count the number of dogs that attacked him, but he estimated around nine or ten dogs, and maybe more. Olson could not remember any distinguishing features of the dogs except that some were black and some were brown.

It’s undisputed that the pack of dogs that attacked Schroeder was generally composed of the same individual dogs that engaged in the two previous attacks. However, the Kistners argued that Schroeder had to show that the dogs that caused her injuries were the specific dogs that had bitten Hoiby’s dog and attacked Olson. Thus, according to the Kistners, Schroeder’s double damages request should fail because none of the victims of the attacks could identify the specific dogs that caused their injuries. The trial court agreed with the Kistners and denied Schroeder’s request to pursue double damages.

The case proceeded to trial. The parties stipulated that the Kistners were liable for Schroeder’s injuries, and they agreed to economic damages, including medical expenses. The jury awarded no damages for non-economic damages, including pain, suffering, disability, and disfigurement.

Schroeder appealed arguing, among other things, that her damages should have been doubled under Section 174.02(1)(b). The court of appeals has now agreed and held Schroeder is entitled to double damages. Schroeder v. American Family Mut. Ins. Co., No. 2013AP2165 (Wis.App. July 29, 2014).

The appellate court rejected the Kistners’ argument that Schroeder was required to present evidence that the specific dogs that caused her injuries also caused a previous injury. According to the court of appeals:
The obvious problem with [the Kistner’s] construction is that oftentimes it is impossible to pinpoint which specific dog in a pack caused an injury. A group of uncontrolled dogs no doubt engenders confusion and panic in the victim, and if the dogs are similar in appearance, even the calm individual’s perception might fail. In this case, for example, the two previous victims of the Kistners’ dachshunds could not identify the dog or dogs that caused their injuries. Schroeder concedes she cannot do so either.
Id.

The court of appeals cited prior cases for the proposition that when a group of dogs attack, the owner or owners of all dogs that participated in the attack are jointly and severally liable for all the damage caused, regardless of which dog caused a specific injury. Relying on such cases, the court of appeals held that “[i]t stands to reason that when the owner of a group of dogs has notice that the group previously attacked and caused an injury, the owner is liable for double damages subsequently caused by all dogs in that pack.” Id. Because of “[t]he practical difficulties inherent in identifying which specific dog in a pack caused a particular injury,” the court noted that adopting the interpretation suggested by the Kistners could lead to “absurd or unreasonable results.” Id.

Because Schroeder established she was attacked by dogs that were part of the same group that had participated in previous attacks, the court of appeals held that Schroeder was entitled to double damages. Although the trial court thus erred in determining the proper measure of damages, the court of appeals ruled there was no need to remand for a new trial because the trial court only needs to double the damages award and calculate the appropriate amount of costs. The judgment was thus reversed and remanded to the trial court to determine the appropriate damages.

Get help with your dog bite or dog attack claim from an experienced attorney

If you have been attacked by a dog or dangerous animal, the good news is that your damages may be covered by the responsible party’s insurance policy. Each state has its own rules regarding liability for dog or animal attacks. Some state laws hold a dog owner responsible for injuries to a person bitten by their dog based simply on ownership of the dog. Other states require the bite victim to prove that the dog was known by the owner to be dangerous or vicious or to prove the owner was negligent or violated an animal control law. Sometimes a landlord or business owner is responsible for the incident. For example, a landlord may have been negligent for allowing a vicious dog to live on the premises.

To successfully bring about any personal injury or wrongful death claim, clients need an experienced, educated attorney on their side. They also need an attorney with the financial resources to take the case to trial. At Heygood, Orr & Pearson, we have tried literally hundreds of cases to verdict and have settled hundreds more. In 2010 alone, we negotiated settlements of personal injury and wrongful death claims totaling more than $50 million.
Heygood, Orr & Pearson also has the financial resources to handle personal injury cases from beginning to end. In fact, there are many instances when we have invested hundreds of thousands of dollars in a case in order to take it to trial. At Heygood, Orr & Pearson, we are committed to achieving justice for our clients, whatever the cost.

Our success stems from the fact that the attorneys at Heygood, Orr & Pearson are trial attorneys in the truest sense and have tried hundreds of cases to verdict. Among our team are numerous attorneys who are board certified* and who have been voted by their peers as Super Lawyers in the state of Texas for several years in a row.** Our firm is AV-rated, the highest legal and ethical rating available from the leading law firm rating service.

If you have suffered a serious personal injury or a loved one has suffered a serious injury or death as the result of the actions of another person or entity, you may have a claim for compensation. Contact us by calling toll-free at 1-877-446-9001 or by filling out our online contact form for a free case evaluation and to learn more about your legal right to compensation.

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* Michael Heygood, James Craig Orr, Jr. and Eric Pearson are all Board Certified in Personal Injury Trial Law — Texas Board of Legal Specialization.

** Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2014.