In Joan A. Kelly v. Amanda E. Berg (2017AP2033), the Court of Appeals District III, based on policy concerns, denied double damages to a plaintiff injured by a dog bite.

In 2015, WCJC supported reforms to Wisconsin’s long standing dog bite liability statute (Wis. Stat. § 174.02(1)(b)) in 2015 Act 112. Act 112 clarified that owners are only be liable for double damages for injuries caused by their dog if a dog bites a person with “sufficient force to break the skin and cause permanent physical scarring or disfigurement” if the owner knew the dog had previously done so. That is, both bites must break the skin and cause permanent scarring or disfigurement, and the owner must have known of the first bite.

Under prior law, dog owners were liable for double damages for dogs that cause injury to people, domestic animals, or property if the dog had previously done so. The prior law did not take into account the severity or type of the damage done. For instance, a dog could cause minor property damage, which would count as the first bite, and then cause physical damage to an individual on the second bite. The owner would be liable for double damages for the second incident despite the innocuous nature of the first damage.

This case occurred before Act 112, so plaintiff Kelly sought double damages when her neighbor Berg’s dog bit her. Kelly claimed Berg’s dog had caused previous “injury to property” by digging holes under her fence, and that Berg’s knowledge of this previous injury entitled Kelly to double damages.

However, the appeals court limited Berg’s liability under the previous Wis. Stat. § 174.02(1)(b) on public policy grounds. The court mentioned several factors limiting liability that applied in this case:

1. The injury to Kelly was too remote from Berg’s negligence because Berg simply failed to predict her dog’s extraordinary, unprovoked attack.
2. The recovery of double damages would be out of proportion and an unreasonable burden related to Berg’s limited negligence.
3. The recovery of double damages would have no “just stopping point” because any minor damage would be considered attributable to Berg’s negligence.

Although owner Berg was not held liable for double damages under the 2013-14 statutes that govern this case, the case demonstrates the importance of Act 112 reforms in limiting these types of cases that had the potential to hold owners liable for dog bite injuries that are unpredictable and out of their control.