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Stroop v. Day6/1/1995
The jury was instructed as follows:
One who enters upon the premises of another at the express or implied invitation of the owner of the premises is called in law an invitee. An invitation is implied where there is some common interest or mutual advantage gained by the property owner as a result of the individual's presence.
One who enters upon the premises of another for his own purpose, but with the permission or sufferance of the owner, is called in law a licensee. A license is implied where the object or purpose of the individual's presence upon the property is the pleasure, convenience or benefit of the individual.
State ex. rel. Burlington Northern, Inc. v. District Court (1972), 159 Mont. 295, 496 P.2d 1152. The jury was properly instructed concerning Stroop's status as either an invitee or a licensee. The Days presented no facts by which the jury could have concluded that Stroop was not either a licensee or an invitee at the time of the incident. Any admonishment that Stroop should remove his hands from the fence or Stogie's display of aggressive behavior in the backyard did not revoke Stroop's status as an invitee or licensee. There was no evidence that Day revoked Stroop's status as a licensee or invitee. By ignoring Day's warning and Stogie's aggressive behavior, Stroop has not barred his claim.
We conclude that the District Court did not err in granting Stroop a new trial. Insufficient evidence was presented at trial that Stroop provoked Stogie. Likewise, there was insufficient evidence that Stroop was not in a public place or lawfully in a private place at the time of the incident. Therefore, there was not a manifest abuse of discretion by the District Court.
Issue 2
Did the District Court err in denying Stroop's motion in limine for an order ruling that contributory negligence does not apply to the liability of defendants under § 27-1-715, MCA?
The Days argue that this issue is not ripe for decision by this Court because the jury did not reach the issue of contributory negligence at the trial below. Alternatively, the Days claim that contributory negligence is applicable because Stroop pled his statutory claim as negligence per se. Therefore, the plaintiff's negligence must be compared to the defendants' negligence to apportion fault.
Stroop argues that the District Court erred by denying his motion in limine for an order ruling that contributory negligence does not apply to the liability of the defendants under § 27-1-715, MCA. Stroop claims that § 27-1-715, MCA, imposes strict liability on dog owners. He argues that liability is therefore limited only by the enumerated defenses provided by that section. Stroop insists that, because he did not provoke Stogie and was lawfully upon the premises, no other conduct may be considered to mitigate the Days' liability.
We agree with Stroop that § 27-1-715, MCA, imposes strict liability on dog owners. See Seim v. Garavalia (Minn. 1981), 306 N.W.2d 806, 810 (determining that a similar statute imposed strict liability rather than negligence per se). There is a clear split of authority concerning whether the defenses of contributory or comparative negligence should be applicable to strict liability dog-bite statutes. Many jurisdictions have determined that defendants are limited to the defenses enumerated in the statutes, namely that the plaintiff provoked the dog or the plaintiff was a trespasser at the time of the incident. See, e.g., Quellos v. Quellos (Ohio Ct. App. 1994), 643 N.E.2d 1173; Massey v. Colaric (Ariz. 1986), 725 P.2d 1099; Seim, 306 N.W.2d at 811-12; Nicholes v. Lorenz (Mich. 1976), 237 N.W.2d 468.
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