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Hill v. Hoig9/23/2003
nt at trial revolved around Grummel v Decker , 294 Mich 71, 77; 292 NW 562 (1940), which held that " nder the common law, contributory negligence upon the part of the plaintiff is a defense" in a dog bite case. Grummel concluded that any provocation by the plaintiff was therefore a complete defense to a common-law negligence action. Id . Since the Supreme Court decided Grummel , however, Michigan has replaced the doctrine of contributory negligence with the doctrine of comparative negligence. MCL 600.2959; see also Placek v Sterling Heights , 405 Mich 638, 650; 275 NW2d 511 (1979). Comparative negligence only serves to reduce the amount of damages a plaintiff may recover to the extent that the plaintiff was negligent; whereas, any negligence on the part of the plaintiff would bar recovery under the doctrine of contributory negligence. Lugo v Ameritech Corp, Inc , 464 Mich 512, 523; 629 NW2d 384 (2001); Grummel, supra at 77. Thus, the trial court properly refused to instruct the jury that a finding of provocation would bar plaintiff's recovery under the common-law.
Affirmed.
Jessica R. Cooper
William C. Whitbeck
O'CONNELL, J. ( dissenting ).
I respectfully dissent. In Grummel v Decker , 294 Mich 71, 77; 292 NW 562 (1940), our Supreme Court expressly held that provocation was a complete defense to a common-law dogbite claim. Our Supreme Court has not reversed Grummel . The majority opinion essentially concludes that our state's adoption of comparative fault extinguished the defense of provocation in common-law dog-bite cases. But this analysis overlooks the fact that contributory negligence and provocation are distinct defenses. VonBehren v Bradley , 266 Ill App 3d 446, 449-450; 640 NE2d 664 (1994). While contributory negligence eliminates a plaintiff's claim because public policy demands that a plaintiff reasonably act to protect his own safety, provocation eliminates a dog owner's duty to prevent the dog from doing damage. Id . at 448-450. So the provocation defense resembles the "open and obvious" doctrine and other duty-based defenses that remain unaltered by the adoption of comparative fault. Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 403; 491 NW2d 208 (1992); see also O'Sullivan v Shaw , 431 Mass 201, 206; 726 NE2d 951 (2000) (listing the authorities and majority jurisdictions that find accordingly).
I again note that our Supreme Court established the defense, so we should resolve any doubt about its continued viability in favor of deference. Boyd v W G Wade Shows , 443 Mich 515, 523; 505 NW2d 544 (1993). In my opinion, the trial court erred when it failed to determine initially whether the defense eliminated the common-law claim and later refused to instruct the jury on the defense's applicability. I would vacate the judgment and remand for a new trial on plaintiff's common-law claim.
Peter D. O'Connell
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