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Stroop v. Day6/1/1995
whether there was a manifest abuse of discretion. Stanhope v. Lawrence (1990), 241 Mont. 468, 787 P.2d 1226. We review the evidence in a light most favorable to the prevailing party to determine whether there was sufficient evidence that reasonable minds might accept as adequate to support a conclusion. Gass v. Hilson (1990), 240 Mont. 459, 784 P.2d 931; Barrett v. Asarco (1990), 245 Mont. 196, 799 P.2d 1078.
Section 27-1-715, MCA, reads:
(1) The owner of any dog which shall without provocation bite any person while such person is on or in a public place or lawfully on or in a private place, including the property of the owner of such dog, located within an incorporated city or town shall be liable for such damages as may be suffered by the person bitten regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.
(2) A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States of America or when he is on such property as an invitee or licensee of the person lawfully in possession of the property. [Emphasis added.]
The Days alleged that: 1) Stroop provoked Stogie prior to the incident or 2) Stroop was not lawfully on or in the Days' private property at the time of the incident. They argue that if there was sufficient evidence of either of these statutory defenses, the District Court abused its discretion by granting a new trial. We address these arguments in turn.
The Days claim that there were three acts of provocation which led to the dog bite incident. First, approximately four to six weeks before the incident, Stroop chased Stogie out of Stroop's yard with a steel fence post. Second, on the day of the dog bite, Stroop extended his hands and forearms over the Days' fence and into "Stogie's turf." This led to Stogie's initial aggressive behavior toward Stroop. Finally, immediately before Stogie bit Stroop, Stroop again extended his hands and forearms over the Days' fence and into Stogie's turf.
The Days argue that, absent a defining statute or clear legislative intent, this Court should adopt the plain meaning of the term "provocation." The Days suggest several dictionary definitions of provocation which include any act that aroused, stimulated or incited a dog to bite an individual. Pursuant to this interpretation of provocation, the Days claim that Stroop's three acts provoked Stogie into biting.
Stroop argued, and the District Court agreed, that these acts were insufficient, as a matter of law, to satisfy the provocation defense in § 27-1-715, MCA. Stroop claims that under the Days' interpretation of "provocation," any act or occurrence that caused a dog to bite an individual would become a defense under § 27-1-715, MCA. Thus, only a completely spontaneous attack would violate this section. The "without provocation" defense would thus overshadow the law and would render the statute virtually useless. See Robinson v. Meadows (Ill. Ct. App. 1990), 561 N.E.2d 111.
Stroop suggests that, to further the reasonable intent of the statute, provocation must be more narrowly defined. He argues that a more appropriate definition of provocation would require the victim to intentionally tease, torment or torture the dog.
After reviewing case law from various jurisdictions, we do not believe that either of the parties' proposed definitions are entirely correct, but rather this issue must be analyzed on a case-by-case basis. Clearly not every occurrence that stimulate
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