In Which the Wisconsin Court of Appeals Fails to Distinguish Between a Dog and a Horse
In July 2011, Jerome Drexler died riding his motorcycle. He crashed into a horse on Highway 97 in Marathon County. The horse (whose post-crash condition the court of appeals does not report), along with three others also running loose that day, belonged to Edward Schwartz. Under an oral agreement, Schwartz and his horses were residing on property owned by James Weiland. To pay off a debt he owed to Weiland, Schwartz was installing a new roof on Weiland’s house. As part of the deal, Schwartz got to live in the house and pasture his horses on Weiland’s land while he did the work.
Drexler’s widow filed suit against Weiland, alleging common law negligence. (Schwartz apparently could not be located and was not part of the suit.) The circuit court held that Weiland bore no liability because he was not the horse’s keeper. The court of appeals recently affirmed, rejecting Mrs. Drexler’s argument that Weiland could be legally responsible for not repairing the fence around his property, from which the horses escaped. Drexler v. McMillan Warner Mut. Ins. Co., No. 2015AP2047 (Wis. Ct. App. Feb. 22, 2017).
The case is fascinating because the courts ruled primarily as a matter of public policy, extending case law developed around liability for injuries caused by dogs, which are household pets, to this incident involving a horse.
Both the courts and Weiland relied primarily on Smaxwell v. Bayard, in which the Wisconsin Supreme Court determined that landowners and landlords cannot be held liable for injuries caused by dogs on their premises unless they own the dogs. 2004 WI 101, ¶2, 274 Wis. 2d 278, 682 N.W.2d 923. The Smaxwell decision was motivated by several distinct public policy concerns:
“[A] landlord should not become the insurer for the acts of his tenant simply by virtue of owning the premises.” Id., ¶46 (citing Gonzales v. Wilkinson, 68 Wis. 2d 154, 158, 227 N.W.2d 907 (1975))
“[A]llowing recovery against landowners or landlords who are neither the owners nor keepers of dogs—that is, landowners or landlords who do not have control over or custody of dogs—causing injury to someone on or around their property would simply have no sensible or just stopping point.” Id., ¶47
“[E]xposing landowners to such liability would essentially force them to fence in their property.” Id., ¶48
“Charging  landlords with constructive knowledge of the propensities and behavioral history of each tenant’s dog and exposing them to liability would have drastic results.” Id., ¶52
Under “Wis. Stat. §174.02, which imposes strict liability for injuries caused by a dog[,] … liability is limited to owners.” Id., ¶51 (emphasis added)
These concerns address situations involving dogs kept in residential areas. It is far from obvious that they translate with full force to the keeping of other animals in rural areas. Nor is it clear that any of them maps onto the specific facts of the Drexler case in any sensible way.
Moreover, Smaxwell also set forth clear principles governing landlord liability. Reiterating a prior decision, the Court made clear that Wisconsin law has “abolish[ed] the general cloak of immunity enjoyed by landlords” at common law. Smaxwell, 2004 WI 101, ¶17. Thus, “‘a landlord is under a duty to exercise ordinary care in the maintenance of the premises.’” Id., ¶19 (quoting Pagelsdorf v. Safeco Ins. Co. of Am., 91 Wis. 2d 734, 741, 284 N.W.2d 55 (1979)). Moreover, the Court explained, the Pagelsdorf decision “specifically concerned a landlord’s duty to maintain the physical premises and keep it free from defects.” Id., ¶36 (citing Pagelsdorf).
Mrs. Drexler’s argument—that Weiland was negligent in allowing an existing fence on his property to fall into disrepair, thereby leading to the escape of his tenant’s horses—seems to fall squarely within the duty Pagelsdorf imposes upon landlords. Unlike the concern in Smaxwell that imposing liability would force all landowners to erect fences, here, Weiland already had a fence. The alleged negligence was failing to maintain the fence he chose to have, not in failing to have a fence at all.
Nonetheless, the court of appeals held Mrs. Drexler’s negligence claim failed as a matter of law. Disputed factual questions—about the condition of the fence and about whether Schwartz had agreed to maintain the fence while he occupied the property—were not material and did not require a jury trial. Drexler, slip op. at n.3. Instead, the court of appeals explained “‘Smaxwell explicitly forecloses landlord liability on a broad basis … unless the landlord … qualif[ies] as an owner or keeper of the dog.’” Id. ¶8 (citing Ladewig ex rel. Grischke v. Tremmel, 2011 WI App 111, ¶25, 336 Wis. 2d 216, 802 N.W.2d 511).
Mrs. Drexler did not argue that Smaxwell’s reasoning is limited to cases involving dogs. Id. ¶ 7. Though this potential argument seems reasonable—and maybe even intuitive—the court of appeals brushed it away in a terse footnote. See id. n.5. According to the court, Smaxwell cannot be limited to dogs because precedent requires a specific jury instruction must be given in all common law negligence cases seeking to impose liability on an owner or keeper of an animal for injuries caused by that animal. Id. (citing Ollhoff v. Peck, 177 Wis. 2d 719, 503 N.W.2d 323 (Ct. App. 1993)). This is a non sequitur: nothing in that pattern jury instruction—which is itself not binding law, see Ollhoff, 177 Wis. 2d at 724—precludes the possibility of the jury finding negligence by others, in addition to or instead of an animal’s owner or keeper.
The Drexler court too readily assumed that Smaxwell’s applicability extends beyond dogs. Smaxwell’s public policy reasoning is far less compelling when applied to horses. And Drexler’s ruling is inconsistent with Pagelsdorf, which the Smaxwell court discussed at some length, in approving terms. It is disappointing that the court of appeals did not use the Drexler case to fully explore the extent to which Smaxwell should apply to cases beyond those involving household pets. Perhaps Mrs. Drexler will petition for review and the Wisconsin Supreme Court will have the opportunity to consider this issue.
Law clerk Olivia Pietrantoni assisted in researching and writing this post.