                                                                  2014 WI 133

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP641
COMPLETE TITLE:         Julie A. Augsburger,
                                  Plaintiff-Respondent,
                             v.
                        Homestead Mutual Insurance Company and George
                        Kontos,
                                  Defendants-Appellants-Petitioners,
                        ABC Insurance Company, Janet C. Veith, Edward
                        Veith and
                        Convergys Corporation,
                                  Defendants.



                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 350 Wis. 2d 486, 838 N.W.2d 88)
                                   (Ct. App. 2013 – Unpublished)
                                      PDC No.: 2013 WI App 106

OPINION FILED:          December 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 4, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Winnebago
   JUDGE:               Gary R. Sharpe

JUSTICES:
   CONCURRED:
   DISSENTED:           PROSSER, J., dissents. (Opinion filed.)
   NOT PARTICIPATING:

ATTORNEYS:
       For        the   defendants-appellants-petitioners,       there    were
briefs       by   Robert   N.   Duimstra,   Jarrod   J.   Papendorf,   Kurt   F.
Ellison, and Menn Law Firm, Ltd., Appleton. Oral argument by
Jarrod J. Papendorf.




       For the plaintiff-respondent, the cause was argued by Susan
R. Tyndall, with whom on the briefs was Joseph M. Troy and
Habush, Habush & Rottier S.C., Appleton and Waukesha.
    An amicus curiae brief was filed by Timothy M. Barber and
Axley Brynelson LLP, Madison; and Monte E. Weiss and Weiss Law
Office S.C., Mequon, on behalf of Wisconsin Defense Counsel.


    An amicus curiae brief was filed by William C. Gleisner III
and Law Offices of William Gleisner, Hartland, on behalf of
Wisconsin Association for Justice.




                                2
                                                                 2014 WI 133
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.     2012AP641
(L.C. No.   10CV844)

STATE OF WISCONSIN                      :            IN SUPREME COURT

Julie A. Augsburger,

            Plaintiff-Respondent,

      v.

Homestead Mutual Insurance Company and George                  FILED
Kontos,
                                                          DEC 26, 2014
            Defendants-Appellants-Petitioners,
                                                             Diane M. Fremgen
ABC Insurance Company, Janet C. Veith, Edward             Clerk of Supreme Court
Veith and Convergys Corporation,

            Defendants.




      REVIEW of a decision of the Court of Appeals.          Reversed.


      ¶1    ANN WALSH BRADLEY, J. Petitioners, George Kontos and

his insurance company, Homestead Mutual Insurance Company, seek

review of a published decision of the court of appeals.                       It

affirmed the circuit court's determination that Kontos could be
                                                                              No.   2012AP641



held liable to the plaintiff, Julie Augsburger, for injuries

caused by his daughter's dogs.1

        ¶2       Kontos contends that he cannot be held strictly liable

for injuries caused by the dogs because he is not an "owner" of

the dogs under the statutory definition.                           According to Kontos,

although          the       statutory      definition        of    "owner"     includes      a

"harborer,"            he   did     not    harbor      his   daughter's      dogs   when    he

permitted his daughter and her family to live in a house he

owned while he resided elsewhere.                        Kontos asserts that because

he lived elsewhere, he did not have the requisite control to be

a harborer under the statute.

        ¶3       We conclude that mere ownership of the property on

which       a    dog    resides      is    not   sufficient       to   establish    that    an

individual is an owner of a dog under Wis. Stat. § 174.02 (2011-

12).2           Rather,      the    totality     of    the   circumstances      determines

whether         the     legal      owner    of   the    property       has   exercised     the

requisite control over the property to be considered a harborer

and thus an owner under the statute.
        ¶4       We determine that Kontos is not an "owner" under the

statute.3         A statutory owner includes one who "owns, harbors or
        1
       Augsburger v. Homestead Mutual Ins. Co., 2013 WI App 106,
350 Wis. 2d 486, 838 N.W.2d 88 (affirming judgment of the
circuit court for Winnebago County, Gary R. Sharpe, Judge).
        2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
        3
       Because this issue is dispositive, we need not reach the
alternative argument raised by Kontos——that even if he is an
owner, public policy weighs against holding him liable.


                                                 2
                                                                No.   2012AP641



keeps a dog."   Wis. Stat. § 174.001(5).           It is undisputed that

Kontos did not legally own the dogs and did not "keep" them.

Additionally,   we   conclude   that    he   was    not   a     harborer    as

evidenced by the totality of the circumstances.                   He neither

lived in the same household as the dogs nor exercised control

over the property on which the dogs were kept.            Accordingly, we

reverse the court of appeals.

                                   I

    ¶5   The    relevant   facts   in    this      case   are     undisputed.

Kontos owned a property in Larsen, Wisconsin on Grandview Road

("the Grandview property").     He purchased the Grandview property

for his daughter, Janet Veith, and her family to live in so that

she could be near her mother who was having medical difficulties

at the time.

    ¶6   Kontos did not reside at the property with the Veiths.

General repairs and maintenance were done by Veith's husband.

This included partially remodeling the interior of the home.

There was no formal lease between Kontos and the Veiths.               Kontos
was aware that the Veiths were having financial difficulties and

he did not expect them to pay rent.              At times he gave his

daughter money to help with the bills.          She dealt with Kontos as

her dad and did not think of him as her landlord.               In explaining

the arrangement, Veith explained that the Grandview property was

"[Kontos'] house.    We live there."     In contrast, her husband did

consider Kontos to be their landlord.

    ¶7   At the time Kontos purchased the property he was aware
that the Veiths owned horses and two dogs and that the animals
                                   3
                                                                          No.    2012AP641



would be living with the family.                    Kontos' deposition testimony

reflects that part of the reason he chose the Grandview property

was its suitability for the horses.                   After the Veiths moved in,

they rescued another dog named Bailey.                    Bailey was pregnant and

had   four     puppies.        The    Veiths       kept   three   of     the     puppies.

Although Kontos was not fond of the dogs, he did not tell his

daughter       to    remove      them       from    the   property.        The     Veiths

acknowledged he had the authority to prohibit the dogs from the

property, but that he did not exercise that authority.                           Although

Kontos       apparently       appeared       on     the   property       on      multiple

occasions, the record reveals that it was not frequent.

       ¶8     When he did visit, Kontos would rarely go near the

dogs.       He never fed the dogs, watered, or bathed them.                      Further,

he did not groom them or take them to the vet.                          He did not pay

for their food, take care of them, or instruct his daughter how

to take care of them.            He did, however, yell at the dogs a few

times to be quiet.

       ¶9     On the date of the incident Veith invited Augsburger
to    visit    her    at   the    Grandview        property.       When       Augsburger

arrived, Veith's daughter informed her that Veith was in the

barn.       As Augsburger made her way to the barn, four dogs ran at

her from the house.              They attacked her and bit her multiple

times.

       ¶10    Augburger       filed     a     complaint       against     the     Veiths,

Kontos,       and    Homestead       Mutual       Insurance    Company.          In   the

complaint Augsburger alleged that Kontos and the Veiths were
negligent in keeping and controlling the dogs and were liable
                                              4
                                                                 No.   2012AP641



for her injuries under Wis. Stat. § 174.02(1), which imposes

strict liability on dog owners for injuries caused by their

dogs.

       ¶11      Both   Kontos   and   Augsburger     filed   summary   judgment

motions addressing the issue of whether Kontos was a statutory

owner.4         Kontos relied on Smaxwell v. Bayard, 2004 WI 101, 274

Wis.       2d   278,   682   N.W.2d   923,   which    held   that   under   the

circumstances a landlord could not be held liable for injuries

caused by a tenant's dog.             Augsburger relied on Pawlowski v.

American Family Ins. Co., 2009 WI 105, 322 Wis. 2d 21, 777

N.W.2d 67, which determined that a landowner was a statutory

owner when she harbored a dog by allowing the dog and its legal

owner to reside in her residence.

       ¶12      The circuit court determined that the term "harbor"

means "to give shelter or refuge to" and concluded that Kontos

gave shelter to the Veiths and their dogs.                    Accordingly, it

determined that he was a statutory owner.

       ¶13      Kontos and his insurer filed an interlocutory appeal,
asserting that he was not a statutory owner because he did not

exercise custody or control over or care for the dogs, and that

public policy precluded his liability.                 The court of appeals

affirmed the circuit court, reasoning that Kontos was a harborer

under the statute because he was the owner of the home and

       4
       Homestead Mutual Insurance Company also filed a summary
judgment motion seeking a determination that the Veiths were not
"insureds" under the policy it provided to Kontos. The circuit
court granted that motion.


                                         5
                                                                                No.        2012AP641



knowingly afforded lodging and shelter to the dogs.                               Augsburger

v. Homestead Mutual Ins. Co., 2013 WI App 106, ¶¶13-14, 350

Wis. 2d 486, 838 N.W.2d 88.                  It further determined that public

policy considerations did not preclude Kontos' liability.                                      Id.,

¶23.

                                             II

       ¶14    In this case, we are asked to review the court of

appeals' decision affirming the circuit court's grant of summary

judgment     to     Augsburger.            When       we   review      grants    of        summary

judgment we apply the same methodology as does the court of

appeals and the circuit court.                       Pawlowski, 322 Wis. 2d 21, ¶15.

Summary judgment is appropriate where "there is no genuine issue

as to any material fact and [] the moving party is entitled to a

judgment as a matter of law."                Wis. Stat. § 802.08(2).

       ¶15    Here, the relevant facts are not in dispute.                             At issue

is whether Kontos can be held liable as an "owner" under Wis.

Stat. § 174.02.              Statutory interpretation is a question of law

that we review independently of the determinations rendered by
the circuit court and the court of appeals.                         Pawlowski, 322 Wis.

2d 21, ¶16.

       ¶16    We    look      first   to    the       statutory     language          at    issue.

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,

¶45, 271 Wis. 2d 633, 681 N.W.2d 110.                           We interpret statutory

language "in the context in which it is used; not in isolation

but    as    part       of   a   whole;     in       relation     to    the     language         of

surrounding        or    closely-related             statutes."        Id.,     ¶46.          Prior
caselaw can aid in this inquiry as it "may illumine how we have
                                                 6
                                                                                No.    2012AP641



previously     interpreted         or    applied        the     statutory         language."

Belding v. Demoulin, 2014 WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d

373.

       ¶17   Our interpretation of a statute is guided also by the

canons of statutory construction.                  "When the legislature chooses

to     use   two     different      words,        we    generally          consider        each

separately     and       presume    that     different         words       have       different

meanings."          Pawlowski,        322    Wis.       2d     21,       ¶22.          Further,

"[s]tatutes        in    derogation     of       the    common       law    are       strictly

construed."        Fuchsgruber v. Custom Accessories, Inc., 2001 WI

81, ¶26, 244 Wis. 2d 758, 628 N.W.2d 833; see also NBZ, Inc. v.

Pilarski, 185 Wis. 2d 827, 836, 520 N.W.2d 93 (Ct. App. 1994)

("A statute in derogation of the common law must be strictly

construed     so    as    to   have     minimal        effect       on   the      common    law

rule.").

                                            III

       ¶18   We begin with the language of the statutes.                              Wisconsin

Stat.    §   174.02,      often    referred       to   as     the    dog    bite      statute,
imposes strict liability on dog owners for injuries caused by

their dogs.        It states: "the owner of a dog is liable for the

full amount of damages caused by the dog injuring or causing




                                             7
                                                                           No.     2012AP641



injury to a person, domestic animal or property."                            Wis. Stat.

§ 174.02(a).5

      ¶19    A   neighboring       statute      contains      a    definition       of    the

term "owner."           Wisconsin Stat. § 174.001 provides: "As used in

this chapter, unless the context indicates otherwise: . . .

'Owner' includes any person who owns, harbors or keeps a dog."

Wis. Stat. § 174.001(5).             The parties agree that Kontos was not

the legal owner of the dogs and did not keep them, but dispute

whether he harbored them.

      ¶20    The    term       "harbor"    is   not    defined       in    the    statute.

Accordingly, the plain language of the statutory scheme fails to

provide     clear       guidance   on     how   the    term       "harbor"       should   be

interpreted        in    the    present     situation.            Wisconsin       caselaw,

however, has addressed the definition of the term "harbor" and

we find guidance from those cases.

      ¶21    A     general      definition      of    the     term        "harborer"      is

provided in Pattermann v. Pattermann, 173 Wis. 2d 143, 149 n.4,

496 N.W.2d 613 (Ct. App. 1992).6                  There, the court defined the
term by contrasting it with the term "keeper."                             It explained

      5
       Subsection (b) of the statute provides: "After notice.
Subject to s. 895.045 and except as provided in s. 895.57 (4),
the owner of a dog is liable for 2 times the full amount of
damages caused by the dog injuring or causing injury to a
person, domestic animal or property if the owner was notified or
knew that the dog previously injured or caused injury to a
person, domestic animal or property." Wis. Stat. § 174.02(b).
      6
          The comment in Pattermann v. Pattermann, 173 Wis. 2d 143, 149 n.4, 496 N.W.2d 613
(Ct. App. 1992), that a landowner could be liable under a common law negligence theory for
injuries caused by a known dangerous dog allowed on her premises was abrogated in Smaxwell
v. Bayard, 2004 WI 101, ¶42 n.8, 274 Wis. 2d 278, 306, 682 N.W.2d 923.

                                            8
                                                                               No.   2012AP641



"[c]ourts generally define 'keeping' as exercising some measure

of care, custody or control over the dog, while 'harboring' is

often defined as sheltering or giving refuge to a dog.                                     Thus,

'harboring'         apparently       lacks       the        proprietary         aspect       of

keeping.'"           Id.       Further       expounding           on     the    meaning      of

"harboring," the court stated that: "'[h]arboring a dog' means

something more than a meal of mercy to a stray dog or the casual

presence of a dog on someone's premises.                               Harboring means to

afford lodging, to shelter or to give refuge to a dog."                                Id. at

151.     Thus, it determined that a mother who permitted her adult

son to bring his dog to a family gathering was not a "harborer."

Id.

       ¶22    Whether an individual fits within this definition of

"harborer" depends upon "the peculiar facts and circumstances of

each individual case."             Pawlowski, 322 Wis. 2d 21, ¶20; Hagenau

v. Millard, 182 Wis. 544, 547, 195 N.W. 718 (1924).                                  In other

words,       the   determination       is     based         on    a     totality      of    the

circumstances.         Cases undergoing such an analysis suggest that
whether the landowner lives on the premise with the dog is an

important factor in making the determination.

       ¶23    For example, this court recently construed the term

"harbor"      in    Pawlowski,      322   Wis.      2d      21.         In    that   case,    a

homeowner allowed an acquaintance and his dogs to live with her.

Id.,   ¶9.         During   that    time,     one      of    the       dogs    attacked     the

plaintiff.         Id., ¶11.       Relying on the definition of "harborer"

in Pattermann, the court determined that the homeowner was a
statutory owner under Wis. Stat. § 174.02.                              Id., ¶26 (quoting
                                             9
                                                                                 No.     2012AP641



Pattermann, 173 Wis. 2d at 149 n.4).                             It explained that it

reached an outcome different from that in Pattermann due to the

different facts.            Specifically, it observed that in Pattermann

"the dog did not live in the house, and the homeowner had not

'fed or cared for the dog in any way.'"                        Id., ¶28.

          ¶24    The Pawlowski court also acknowledged caselaw holding

generally that landlords are not liable for the actions of their

tenants' dogs.            Id., ¶52 (citing Smaxwell, 274 Wis. 2d 278;

Gonzales v. Wilkinson, 68 Wis. 2d 154, 227 N.W.2d 907 (1975);

Malone      v.    Fons,    217    Wis.   2d   746,        580    N.W.2d        697     (Ct.    App.

1998)).          It noted that in traditional landlord-tenant cases,

"the landlord had limited control over the tenant's premises."

Id.       It explained that the circumstances it was considering were

different because the dog and its owner lived in a bedroom in

the landowner's home.              Id.   Thus, the dog owner was "more akin

to    a    houseguest      than    a   tenant,"      and        so   the       landlord-tenant

caselaw did not apply.             Id.

          ¶25    Other    cases    construing        "owner"         in    the       context    of
liability for dog bites likewise suggest that a landowner who

lives      in    a   separate     residence        from    a     dog      is    not    typically

considered a statutory owner of that dog.                            In Hagenau, 182 Wis.

544, the court considered a situation where Ritter, who was the

defendant's sister-in-law and employee, rented two rooms in the

defendant's building in which Ritter and her dogs lived.                                       The

court stated that: "the word 'harbor' in its meaning signifies

protection; and it has been held that the keeper is one who


                                              10
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treats the dog as living at his house and who undertakes to

control his actions. . . ."          Id. at 547.

    ¶26     The Hagenau court stressed the importance of where the

landowner was living.         It noted that the defendant "occupied

separate and distinct portions of the premises and maintained a

separate and distinct home or place of abode." The court further

determined that "[t]here is no evidence, however, in the case

which tends to indicate that [defendants] could be deemed to be

harborers of the dogs; that they furnished them with shelter,

protection, or food, or that they exercised control over the

dogs."      Id.   at   548.     Accordingly,       it   concluded     that    the

defendants were not liable as owners.          Id. at 549.

    ¶27     The   court    addressed    the   alternative     scenario       of   a

defendant who permitted his adult daughter and her dog to live

with him in Koetting v. Conroy, 223 Wis. 550, 270 N.W. 625

(1937).    The court observed that the dog lived "in the dwelling

house of [defendant], with his knowledge and permission, and fed

from the remnants of his table."            Id. at 552.     Additionally, it
stated that "[w]here a child is the owner of a dog kept on the

premises of the father, who supplies it with food and furnishes

it with shelter upon his premises, the father is deemed to be a

keeper of the dog." Id. at 552 (quoting Hagenau, 182 Wis. at

547).     Accordingly, the court determined that the defendant was

a keeper under the statute.

    ¶28     Although      Koetting    discussed     "owner"    in     terms       of

"keeper" and not "harborer," the opinion seems to use the words
interchangeably.       See id. at 555 ("One purpose of the statute is
                                       11
                                                                         No.    2012AP641



to protect domestic animals from injury by whomsoever the dogs

are kept or harbored."); id. at 552 (noting that in order to

make a case against a defendant under Wis. Stat. § 174.02, a

plaintiff must show facts "which made him the keeper of the

dog").

      ¶29    Further        support     for       the   importance       of    where    a

landowner resides can be found in Malone v. Fons, 217 Wis. 2d

746, 580 N.W.2d 697 (Ct. App. 1998).                      In that case the court

considered whether a landlord was a harborer of a dog owned and

kept by a tenant.           The court concluded that "a landlord does not

become a harborer of a tenant's dog merely by permitting his or

her tenant to keep the dog."             Id. at 766.

      ¶30    Augsburger argues that landlord-tenant cases, such as

Malone, are not applicable because there was no formal rental

agreement between Kontos and the Veiths.                       In response, Kontos

asserts     that   the      Veiths    were    tenants-at-will.           We    need    not

determine whether there was a landlord-tenant relationship in

this case.     As indicated by Pawlowski, 322 Wis. 2d 21, ¶52, our
focus is not on the official relationship between the dog owner

and the landowner; rather our focus is on the amount of control

the landowner exerts over the premises on which the dog is kept—

—whether the dog's legal owner is more akin to a houseguest or a

tenant.

      ¶31    The     rule     we     glean    from      the    cases    discussed      is

supported by the Restatement (Second) of Torts, § 514 cmt. a

(1977).     The Restatement stresses that land ownership by itself
is   not    enough    to     qualify    a     landowner       as   a   harborer:      "the
                                             12
                                                                        No.     2012AP641



possession of the land on which the animal is kept, even when

coupled with permission given to the third person to keep it, is

not    enough   to    make   the    possessor      of    the    land    liable     as   a

harborer of the animal."             The court of appeals has previously

cited this language with approval, Malone, 217 Wis. 2d at 766

n.7, and we likewise find it persuasive.

       ¶32   The Restatement further emphasizes the importance of

considering whether the landowner is residing on the premises

with   the   dog.       It   explains     that    an    individual      "harbors      [an

animal] by making it part of his household."                          Id.     It states

that: "[t]his he may do by permitting a member of his household

. . . to keep the animal either in the house or on the premises

that are occupied as the home of the family group of which he is

the head."      Id.

       ¶33   The fact scenario in this case (although admittedly

more detailed) matches an example provided in the Restatement

(Second) of Torts § 514.                 In explaining who qualifies as a

harborer, the Restatement observed that "a father, on whose land
his son lives in a separate residence, does not harbor a dog

kept by his son, although he has the power to prohibit the dog

from    being    kept    and     fails    to     exercise      the     power."        Id.

Similarly     here,     Kontos'    ownership      of    the    land    on     which   his

daughter     resides    in   a    separate     residence       is    insufficient       to




                                          13
                                                                          No.   2012AP641



qualify Kontos as a harborer even though he possessed the power

to exclude the dogs but failed to exercise that power.7

         ¶34    Cases from a number of other jurisdictions likewise

support        the   view   that    whether      the    landowner   resides      on   the

premises with the dog is relevant to determining whether the

landowner is a harborer.                See, e.g., Carr v. Vannoster, 281 P.3d

1136, 1144 (Kan. Ct. App. 2012) ("[Defendant] was not a harborer

of   [his        son's]     dog . . .; [Son]            was   not     a     member     of

[defendant's] household. [Son] maintained his own household on

the premises where he lived with his wife. The home where he

kept his dog was not the home or premises occupied as the home

of   the       family   group      of   which    [defendant    was]       the   head.");

Barnett v. Rowlette, 879 S.W.2d 543, 544 (Mo. Ct. App. 1994)

("the fact that Kenneth was in possession of [the dog] and lived

in   a       separate   residence        from    [the    landowner]       prevents    the

conclusion from being drawn that [the landowner] harbored [the

dog].").

         ¶35    The court of appeals in this case relied on another
out-of-state case, Anderson v. Christopherson, 816 N.W.2d 626

(Minn. 2012), to reach its conclusion that as the owner of the

land, Kontos was a statutory owner of the dogs.                     Augsburger, 350

         7
       The dissent criticizes the use of the Restatement to
support our analysis. Dissent ¶¶93-95.    It maintains that both
section 514 and 518 of the Restatement differ from the strict
liability scheme currently in place in Wisconsin for domestic
dog bites.    We agree and accordingly apply neither.     We do,
however, cite to section 514 as an analogous strict liability
scheme that discusses what constitutes a "harborer."


                                            14
                                                                          No.     2012AP641



Wis. 2d 486, ¶15.             In Anderson, the defendant had two houses.

He permitted his son who owned a dog to visit his Minnesota

house    with    his     fiancée.     816    N.W.2d    at    629.        The    defendant

specifically gave permission for his son to bring the dog, but

established rules for the dog's presence.                         Id.    The defendant

lived in another state and was not present when his son visited.

Id.     The Minnesota Supreme Court determined that the defendant

could be held liable as a harborer of the dog, and remanded the

case for a jury determination on the issue.                    Id. at 633.

      ¶36     Anderson does not convince us that mere ownership of

the property on which a dog is kept is sufficient to qualify the

landowner as a harborer.                It did not hold that a defendant

necessarily is a harborer if he owns the property on which the

dog resides.          Indeed, it stated that Minnesota caselaw "requires

that a harborer do more than exercise control over land upon

which   the     dog    resides."       Id.        Further,     Anderson        quoted       the

Restatement          (Second)    of   Torts       § 514     with    approval.               Id.

("neither the 'mere right to exclude' nor '[t]he possession of
the   land      on    which     the   animal      is   kept,      even   coupled        with

permission given to a third person to keep it' were sufficient

to convert the landlord of a property into a harborer.").

      ¶37     Insofar      as    Anderson         considered       the   issue         of     a

defendant's      ownership       of   the    property,       it    merely       held    that

property ownership was a factor to consider in answering the

question of whether a landowner is a harborer and remanded the

case for a jury to decide whether under the facts of the case
the defendant was an owner.             Id. at 633-34.            Thus, Anderson does
                                             15
                                                                            No.    2012AP641



not militate toward finding a landowner to be per se an owner of

a dog residing on his land.

    ¶38     A     narrow       interpretation           of    the   word    "harbor"       is

consistent        with     the     canons          of        statutory     construction.

Augsburger       raised    the   concern         that    this    court     would    include

control     in    the     definition        of    harbor,        conflating       the    word

"harbor" with the word "keep" in Wis. Stat. § 174.001, which

would conflict with the canon of construction that different

words be given different meanings.                      See Pawlowski, 322 Wis. 2d

21, ¶22 ("[w]hen the legislature chooses to use two different

words, we generally consider each separately and presume that

different words have different meanings.").                          Whereas Pawlowski

defines "keeping" as "exercising some measure of care, custody

or control over the dog," id., ¶26, Augsburger maintains that

the court should not put any requirement for control into the

definition of "harborer."

    ¶39     Our interpretation of the dog bite statute does not

overlook the canon of construction that Augsburger cites.                                  We
acknowledge that in interpreting "harborer" in a manner that

considers    where       the   landowner         resides      necessarily     takes      into

consideration some aspect of control.                        An off-premises landowner

generally has less control over the property than an on-premises

landowner.        However,       the   control       that      is   implicated      in    our

interpretation of "harborer" is not the same as the control an

individual       must     exercise     to    be     a        "keeper."      The     control

considered in the analysis of "keeper" is control over the dog,
not control over the property.                   Pawlowski, 322 Wis. 2d 21, ¶26.
                                             16
                                                                            No.    2012AP641



Thus, our interpretation of the dog bite statute which takes

into account where the landowner resides is in keeping with the

canon of construction that different words in a statute have

different meanings.

       ¶40     Additional support for our interpretation comes from

the     canon        of    construction         providing      that    legislation         in

derogation of the common law should be strictly construed so as

to have minimal effect on the common law rule.                        Fuchsgruber, 244

Wis. 2d 758, ¶25; NBZ, Inc., 185 Wis. 2d at 836.                           The    dog    bite

statute is in derogation of the common law.                      Malone, 217 Wis. 2d

at 763; Pattermann, 173 Wis. 2d at 150.                        Under the common law

rule, an owner needed to have notice that a dog was dangerous in

order    to     be    held    liable      for    an   injury    caused      by    the    dog.

Smaxwell, 274 Wis. 2d 278, ¶42; Nelson v. Hansen, 10 Wis. 2d

107,    118,    102       N.W.2d    251   (1960).       In   1981,    the    legislature

amended Wis. Stat. § 174.02 to impose strict liability on dog

owners.       § 10, ch. 285, Laws of 1981 ("Liability for injury. (a)

Without notice.              The owner of a dog is liable for the full
amount of damages caused by the dog injuring or causing injury

to a person, livestock or property.").

       ¶41     As the strict liability imposed by Wis. Stat. § 174.02

on owners for injuries caused by dogs is in derogation of the

common law, the statute should be interpreted narrowly.                             Malone,

217    Wis.     2d    at     763;   Pattermann,       173    Wis.     2d    at    150.      A

conclusion that "harboring" requires more than mere ownership of

the land on which a dog resides is consistent with a narrow
reading of the statute.               A contrary interpretation would extend
                                                17
                                                                 No.    2012AP641



the strict liability in the statute, being in further derogation

of the common law rule requiring negligence or fault.

      ¶42     In sum, the determination of ownership under the dog

bite statute is based on the totality of the circumstances.                    Our

review of the statutes, caselaw, and the canons of statutory

construction convinces us that mere ownership of the property on

which   a     dog   resides    is   insufficient    to    establish     that    an

individual is a harborer.

                                        IV

      ¶43     Having determined that ownership of the property on

which a dog resides is not sufficient to establish that the

individual is an owner under the dog bite statute, we turn to

the facts of this case.

      ¶44     First, we consider the degree of control that Kontos

had over the Grandview property to determine whether the Veiths

were more akin to houseguests or tenants.                  There are limited

facts   to      support    the      conclusion     that    the   Veiths       were

houseguests.        In essence, they are limited to the fact that
there was no        formal rental agreement        between Kontos and the

Veiths, and that Kontos did not expect the Veiths to pay rent

due to their financial circumstances.

      ¶45     On the other hand, multiple facts suggest that the

Veiths were more akin to tenants.              Kontos did not live at the

property with the Veiths, but maintained a separate residence

approximately seven miles away.               The record does not reflect

that he prescribed particular rules for the Veiths to follow.
Mr.   Veith    performed      repairs   and   general     maintenance    on    the
                                        18
                                                                                No.     2012AP641



property     and     partially          remodeled          the   interior     of      the    home.

Further, although Kontos apparently appeared on the property on

multiple occasions, the record reveals that it was not frequent.

       ¶46     Overall, the record demonstrates that Kontos did not

exercise       control          over     the       Grandview       property.            By     all

indications, Kontos provided the property for his daughter with

the intention that she treat it as her home.                              This was not the

situation at issue in                  Pawlowski          where the dog's legal              owner

lived   in     the    same       residence          with    the    property     owner        in   a

relationship akin to a houseguest.                         Rather, the Veiths lived on

the Grandview property, maintaining it as if it were their own

residence.

       ¶47     Considering the totality of the circumstances detailed

above, we conclude that Kontos was not a statutory owner of the

dogs    such    that       he    could        be    held     liable     under      Wis.      Stat.

§ 174.02.       It is undisputed that Kontos did not legally own the

dogs and did not exercise the requisite care, custody or control

of the dogs to qualify as a keeper.                               Further, he was not a
harborer of the dogs.              Although Kontos provided shelter for his

daughter and family by buying the house for them to live in, he

exercised       no    control          over    that        property     and   maintained          a

separate       residence.              Ultimately,          it    was   his   daughter         who

provided shelter to the dogs.

                                                   V

       ¶48     We conclude that mere ownership of the property on

which   a    dog     resides      is     not       sufficient      to   establish       that      an
individual      is    an    owner       of     a    dog    under   Wis.   Stat.       § 174.02.
                                                   19
                                                                 No.    2012AP641



Rather, the totality of the circumstances determines whether the

legal owner of the property has exercised the requisite control

over the property to be considered a harborer and thus an owner

under the statute.

    ¶49     We determine that Kontos is not an "owner" under the

statute.    A statutory owner includes one who "owns, harbors or

keeps a dog."      Wis. Stat. § 174.001(5).         It is undisputed that

Kontos did not legally own the dogs and did not "keep" them.

Additionally,     we   conclude   that   he   was    not    a    harborer     as

evidenced by the totality of the circumstances.                    He   neither

lived in the same household as the dogs nor exercised control

over the property on which the dogs were kept.              Accordingly, we

reverse the court of appeals.

    By     the   Court.—The   decision   of   the   court   of     appeals    is

reversed.




                                    20
                                                                    No.    2012AP641.dtp



    ¶50    DAVID      T.    PROSSER,    J.        (dissenting).         On   June    21,

2008,   Julie   Augsburger         (Augsburger)        visited    the   home    of   her

longtime     friend        Janet     Veith       in    rural     Winnebago     County.

Augsburger    had   visited        Janet,    her      husband    Edward,     and   their

daughter Jordan (the Veiths) on other occasions, and she knew

that the Veiths kept multiple dogs on the premises.                          She asked

Jordan whether the dogs had been let out of the house into a

fenced-in yard because she had to walk through the yard to get

to the barn where Janet was working.                    Jordan told her the dogs

were not out.

    ¶51    When Augsburger entered the fenced-in area, she was

suddenly attacked by four dogs.                  The dogs repeatedly bit her and

tore off her pants.                She was bitten at least 11 times and

suffered serious lacerations on both legs——that is, on her left

thigh, left calf, and right calf.                     Some of these lacerations

required "surgical closure."                 The most serious laceration——on

her right calf——measured ten centimeters, resulting in a "6 cm

long dented area."          Augsburger was given morphine to relieve her
pain when she was transported by ambulance to a local hospital,

and she was given another opiate at the hospital.

    ¶52    In due course, Augsburger sued Janet and Edward Veith;

Janet's father, George Kontos; and Kontos's insurer, Homestead

Mutual Insurance Company, to recover damages.                      The question in

this case is whether George Kontos may be held liable for the

full amount of damages caused by the dogs, on grounds that he




                                             1
                                                                               No.    2012AP641.dtp

"harbored"          the        dogs     under     Wis.     Stat.      §§ 174.001(5)               and

174.02(1).1

       ¶53        The majority answers this question "no," concluding

that he is in no way liable.                     It reverses a published decision

of   the      court       of    appeals,        which    affirmed     a    ruling           of    the

Winnebago         County       Circuit      Court,     Gary    R.   Sharpe,          Judge,      that

reached the opposite conclusion.                        Augsburger v. Homestead Mut.

Ins.       Co.,    2013    WI     App    106,    350     Wis. 2d 486,          838     N.W.2d 88.

Because       I         believe       the    majority         is    misinterpreting                and

misapplying the applicable statutes, I respectfully dissent.

                                                  I

       ¶54        The statutory law in this case is found in Chapter 174

of the Wisconsin Statutes.                   Wisconsin Stat.§ 174.02 is entitled

"Owner's liability for damage caused by dog."                              Subsection (1),

"Liability for Injury," provides in part:

            (a) Without notice. . . . [T]he owner of a dog
       is liable for the full amount of damages caused by the
       dog injuring or causing injury to a person, domestic
       animal or property.

            (b) After notice. . . . [T]he owner of a dog is
       liable for 2 times the full amount of damages caused
       by the dog injuring or causing injury to a person,
       domestic animal or property if the owner was notified
       or knew that the dog previously injured or caused
       injury to a person, domestic animal or property.
       ¶55        The     term        "owner"      is     defined         in         Wis.        Stat.

§ 174.001(5): "'Owner' includes any person who owns, harbors or

keeps a dog."            (Emphasis added.)


       1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                                  2
                                                                       No.   2012AP641.dtp

       ¶56   The quoted statutes were adopted at different times.

Wisconsin Stat. § 174.001(5) was part of Section 8m, Chapter

289, Laws of 1979.             It became effective on January 1, 1981.

Wisconsin Stat. § 174.02(1) was part of Section 10, Chapter 285,

Laws    of   1981.            It   became     effective          on    May     1,    1982.

Understanding the legislative history of these dog bite statutes

is    essential    to    rendering      a     correct      interpretation           of   the

statutes.

       ¶57   There have been dog bite statutes in Wisconsin since

the early 1850s.        Section 1620 of the Wisconsin Statutes of 1898

read in part as follows:

            Owner's Liability.    The owner or keeper of any
       dog which shall have injured or caused the injury of
       any person or property . . . shall be liable to the
       person so injured . . . without proving notice to the
       owner or keeper of such dog or knowledge by him that
       his   dog  was    mischievous  or   disposed to  kill
       [animals] . . . .
This same language appeared in Wis. Stat. § 174.02 (1923), and

the    language   and    substance      of    this   statute          remained      largely

unchanged until Wis. Stat. § 174.02 was repealed and recreated

in 1982.

       ¶58   The above-quoted statute was not a strict liability

statute.      This      was    made   clear    in    Chambliss         v.    Gorelik,     52

Wis. 2d 523,      191    N.W.2d 34     (1971),       and    in    an    earlier      case,

Nelson v. Hansen, 10 Wis. 2d 107, 102 N.W.2d 251 (1960).

       ¶59   In Chambliss, Justice Nathan Heffernan, writing for a

unanimous court, stated:

            At common law the owner or keeper of a dog was
       not liable for the vicious or mischievous acts of the
       dog unless he had prior knowledge of the vicious or
       mischievous propensities of the dog or unless the
                                 3
                                                           No.   2012AP641.dtp
     injury was attributable to the negligence of the owner
     or keeper.   Nelson v. Hansen (1960), 10 Wis. 2d 107,
     102 N.W.2d 251. . . .

          [I]n Nelson v. Hansen, . . . the court determined
     that the legislature did not impose or intend to
     impose strict liability on the keeper of a dog.     It
     was also determined that an action brought under the
     statute continued to be one for negligence but that
     the statute eliminated the necessity of proving
     scienter.   In all other respects, the responsibility
     of an owner or keeper remained the same.    As we said
     in Nelson v. Hansen, . . . page 115, after discussion
     of early cases: ". . . the statute only applied to
     injuries from mischievous or vicious acts of a dog for
     which at common law the owner would not be liable
     unless he had knowledge or ought to have known of such
     propensities." . . .

          For cases under the statute in which no proof of
     scienter is required and where there is no evidence of
     the keeper's negligence . . . there must be proof that
     the dog was vicious or mischievous. . . .

          Thus, under the statute, it continues to be
     necessary to show that the dog, prior to the act
     complained about, had vicious and destructive habits.
     The statute merely eliminates the necessity of proving
     that the keeper had such knowledge.
Chambliss, 52 Wis. 2d at 528-30 (quoting Nelson, 10 Wis. 2d at

115).

     ¶60   A flurry of legislative activity in the early 1980s

significantly altered the law.            First, Wis. Stat. § 174.001(5)
provided a definition of "owner" that added the word "harbors,"

and also used the word "includes" before its reference to "any

person   who   owns,   harbors   or   keeps    a   dog."    These    changes

extended dog bite liability to a broader group of people.

     ¶61   Second, the rewritten § 174.02(1) borrowed a provision

from a statute that the legislature repealed in 1982——namely,
Wis. Stat. § 174.03 (1979)——that provided double damages when a

dog known to be dangerous is responsible for a repeat attack on
                                      4
                                                                No.   2012AP641.dtp

animals;    the   rewritten   statute      made   double   damages      available

when a repeat attack injures a person.

      ¶62     Third, the rewritten § 174.02(1) also created strict

liability.      A strict liability statute imposes liability for a

dog bite irrespective of an "owner's" scienter and irrespective

of whether the dog had a previous propensity for biting.

      ¶63     The strict liability point was discussed in Cole v.

Hubanks, in which the court said: "Wisconsin Stat. § 174.02 is a

'strict liability' statute wherein the legislature has made the

policy choice to place the burden of damage caused by a dog on

the   dog's    owner."    Cole   v.    Hubanks,     2004   WI    74,    ¶22,   272

Wis. 2d 539, 681 N.W.2d 147 (citing Becker v. State Farm Mut.

Auto. Ins. Co., 141 Wis. 2d 804, 815, 416 N.W.2d 906 (Ct. App.

1987); Fifer v. Dix, 2000 WI App 66, ¶12, 234 Wis. 2d 117, 608

N.W.2d 740).2

      ¶64     The court's statement in Cole was affirmed unanimously

in Pawlowski v. American Family Mutual Insurance Co., 2009 WI

105, ¶¶14, 17, 322 Wis. 2d 21, 777 N.W.2d 67, when the court

said, "Both a legal owner and a statutory owner of a dog can be
simultaneously strictly liable under Wis. Stat. § 174.02. . . .

Section 174.02 is a strict liability statute."

      ¶65     Surprisingly,   the     majority     opinion      places     little

emphasis on the history of the two statutes.               In fact, it seeks

to compare the present statutes, not to the prior statute in

      2
       The decision in Becker v. State Farm Mutual Automobile
Insurance Co., 141 Wis. 2d 804, 416 N.W.2d 906 (Ct. App. 1987),
relied on Meunier v. Ogurek, 140 Wis. 2d 782, 412 N.W.2d 155
(Ct. App. 1987).


                                       5
                                                                        No.       2012AP641.dtp

force from 1898 to 1982, but to Wisconsin common law that has

not existed since at least 1871.               See § 8, ch. 67, Laws of 1871.

The    majority      relies      selectively     on     a    canon        of        statutory

construction        (statutes       in   derogation     of        the     common          law),

Majority op., ¶40, but it fails to acknowledge that one of the

present statutes contains a definition of "owner" that uses the

word "includes," which invites a broader interpretation of the

statute.      See Black's Law Dictionary 766 (7th ed. 1999) ("The

participle          including        typically        indicates               a       partial

list . . . .");       see    also    Hirschhorn    v.       Auto-Owners            Ins.    Co.,

2012 WI 20, ¶36, 338 Wis. 2d 761, 809 N.W.2d 529 ("When a list

of    terms   follows      the   word    'includes,'        the    list       is     commonly

understood to be non-exhaustive.").

       ¶66    The purpose of the revised dog bite statutes was well

stated in Pawlowski, 322 Wis. 2d 21, ¶76:

            The purpose of Wis. Stat. § 174.02 is "to protect
       those people who are not in a position to control the
       dog." [quoting Armstrong v. Milwaukee Mut. Ins. Co.,
       202   Wis. 2d 258,    268,   549  N.W.2d 723    (1996).]
       Imposing   liability . . . furthers   the    legislative
       policy embodied in Wis. Stat. § 174.02 of protecting
       innocent people from injury by dogs, of ensuring that
       an   innocent   victim    of   a  dog   bite    recovers
       compensation, and of making a person who owns,
       harbors, or keeps a dog responsible for injuries
       inflicted by the dog.
       ¶67    In    sum,     the     statutory     history          of        Wis.        Stat.

§§ 174.001(5) and 174.02(1) and the clear policy embodied in the

statutes      are   not    consistent     with    the   majority's             restrictive

reading of these statutes.

                                          II



                                           6
                                                      No.   2012AP641.dtp

       ¶68   The key word requiring interpretation is "harbors."       I

agree with much of the majority's discussion of the pertinent

case law.     I disagree with the majority's failure to apply that

law.

       ¶69   The majority opinion reads in part:

            The   term  "harbor"   is   not   defined  in the
       statute. . . .    Wisconsin    caselaw,   however, has
       addressed the definition of the term "harbor" and we
       find guidance from those cases.

            A general definition of the term "harborer" is
       provided in Pattermann v. Pattermann, 173 Wis. 2d 143,
       149 n.4, 496 N.W.2d 613 (Ct. App. 1992).    There, the
       court defined the term by contrasting it with the term
       "keeper."    It explained "[c]ourts generally define
       'keeping' as exercising some measure of care, custody
       or control over the dog, while 'harboring' is often
       defined as sheltering or giving refuge to a dog.
       Thus, 'harboring' apparently lacks the proprietary
       aspect of 'keeping.'" Id. Further expounding on the
       meaning of "harboring," the court stated that:
       "'harboring a dog' means something more than a meal of
       mercy to a stray dog or the casual presence of a dog
       on someone's premises.     Harboring means to afford
       lodging, to shelter or to give refuge to a dog." Id.
       at 151.
Majority op., ¶¶20-21 (emphasis added)(footnote omitted).

       ¶70   In light of this case law, the question is whether

George Kontos harbored the Veiths' dogs; that is, whether he

provided lodging or shelter for the Veiths' dogs.

       ¶71   The circuit court (Judge Sharpe) said:

             The definition of harbor is "to give shelter or
       refuge to" and there is no question that Mr. Kontos
       gave shelter to Edward and Janet Veith and their dogs.
       No landlord tenant relationship existed. . . . [T]he
       Court    feels  that   [Mr.  Kontos]  had   sufficient
       connection and that the arrangement was based upon
       family as opposed to a landlord tenant/business
       relationship.   As a result, the Court finds that Mr.


                                   7
                                                                No.   2012AP641.dtp
    Kontos harbored the        dogs      pursuant       to    Wis.    Stats.
    § 174.001(5) . . . .
(Emphasis added.)

    ¶72     In   a   well-reasoned     opinion,       the    court    of   appeals

affirmed this determination:

    Like the homeowner in Pawlowski, Kontos afforded the
    Veiths' dogs shelter and lodging for many months, some
    for more than a year, before the incident, and thus he
    harbored them.   Further, his status as a harborer is
    not undermined by the fact he was not also a keeper
    exercising custody or control over the dogs.
Augsburger, 350 Wis. 2d 486, ¶12.

    ¶73     The court added:

         Kontos contends in his reply brief that because
    he personally resided in a different home from the
    dogs, this case is substantively distinguishable from
    Pawlowski. We disagree. In both cases, the owner of
    the homes knowingly afforded lodging and shelter to
    the dogs, the relevant consideration in deciding a
    question of "harboring." The fact that Kontos resided
    in a separate home from the dogs, and therefore was
    not in a convenient position to and in fact did not
    exercise custody or control over or care for the dogs,
    would be most relevant if the issue was whether Kontos
    was a "keeper."   Indeed, had the legislature limited
    the statutory definition of "owner" to only owners and
    keepers of dogs, we would have no difficulty holding
    for Kontos. But the legislature did not so limit the
    statute. In choosing to include "harbor[ers]" in the
    definition of owners, the legislature broadened the
    pool of potentially liable persons beyond just those
    who own or keep offending dogs.
Id., ¶13.

    ¶74     The majority opinion correctly states that the "mere

ownership   of   the   property   on    which     a    dog    resides      is   not

sufficient to establish that an individual is an owner of a dog

under Wis. Stat. § 174.02."          Majority op., ¶48.           Instead, "the
totality of the circumstances determines whether the legal owner

of the property has exercised the requisite control over the
                              8
                                                                       No.    2012AP641.dtp

property to be considered a harborer and thus an owner under the

statute."      Id.

       ¶75   This brings us to the totality of the circumstances

and   raises      the    question      of   what    control     Mr.    Kontos    did    not

exercise over "the circumstances."

                                            III

       ¶76   The facts are not in dispute.                   In 2007 George Kontos

and his wife were living at their home in Butte Des Morts in

Winnebago      County.          Mrs.    Kontos      was    seriously     ill.         Their

daughter, Janet Veith, was living with her husband and daughter

in Colorado, under circumstances that permitted the Veiths to

maintain horses and dogs on their property.

       ¶77   Mr. and Mrs. Kontos wanted their daughter to come home

to be near her mother.              Janet Veith wanted to come.                  However,

the Veiths were in no position financially to give up what they

had in Colorado in terms of property and employment to move to

Wisconsin.        George Kontos made that possible.

       ¶78   In sum, Mr. Kontos asked that Janet and her family

relocate to Wisconsin to be near Mrs. Kontos.                       Mr. Kontos helped
pay for the move.           Mr. Kontos purchased a house for the Veiths

to    live   in    and    he    selected     a     house   in   a     rural    area    that

permitted the Veiths to keep horses and dogs.                          He continued to

own that property.             He paid the taxes on the property.                  And he

acquired the only insurance policy on the property.

       ¶79   The Veiths did not pay rent for the property and were

not expected to pay rent.               Even if they earned some income, the

Veiths were financially subsidized by Mr. Kontos.                            For example,
he made Janet's car payments.                    When Janet wrote Mr. Kontos a

                                             9
                                                                No.    2012AP641.dtp

$2,000 check as partial reimbursement for this assistance, he

did not cash it. Why?        When Mr. Kontos was asked in a deposition

whether it was "accurate to say that as far as [he] knew [the

Veiths] just have enough money to get by," he replied "Yes."

The deposition continued: "[Question:] Is that yes? [Answer:]

That's probably a generous statement."

      ¶80    As the court of appeals explained, "Kontos was aware

the Veiths had two dogs when they moved into the property in

February 2007, and he permitted these and additional dogs they

acquired     a   few    months    later   to   be   kept   on   the    property."

Augsburger, 350 Wis. 2d 486, ¶3.

      ¶81    At the time of the attack in June 2008, there were six

dogs on the property.            The presence of the dogs was not unknown

to   Mr.    Kontos     because    he   visited    the   property      on   multiple

occasions and had some interaction with them.3

      ¶82    The majority opinion states: "Kontos would rarely go

near the dogs.         He never fed the dogs, watered, or bathed them.

Further, he did not groom them or take them to the vet.                     He did

not pay for their food, take care of them, or instruct his
daughter how to take care of them."              Majority op., ¶8.

      ¶83    Most of these statements are not relevant because they

involve "keeping" a dog.               Mr. Kontos is not alleged to have

"kept" the dogs.        Even so, the statements go too far.                Although

Mr. Kontos may not have gone to the supermarket to buy food for

the dogs, his various financial subsidies to the Veiths made it


      3
       For example, Kontos would sometimes yell at the dogs to be
quiet when he was visiting the Veiths.


                                          10
                                                            No.    2012AP641.dtp

possible for the Veiths to acquire additional dogs, buy food for

the dogs, and get all of the dogs properly licensed.

      ¶84   Mr. Kontos admittedly did not assert direct control

over the dogs but he had complete authority to remove them from

the property, as he could have asked the Veiths to leave the

property.    He did exercise a lot of control over the property——

more than simple ownership.     For instance, he stored his boat on

the property.

      ¶85   Looking at the totality of the circumstances, it would

be hard to contend that Mr. Kontos did not shelter the Veith

family.     It would be hard to contend that Mr. Kontos did not

shelter the Veith horses, inasmuch as he enabled them to move

from Colorado and bought property with a barn for horses.

      ¶86   Why then did he not shelter the dogs?                 Why was the

circuit court clearly erroneous when it found that Mr. Kontos

had   harbored   the   dogs?    The      majority   does   not     provide    a

satisfactory answer.

                                    IV

      ¶87   The majority cannot be indifferent to the plight of
the victim in this case.       It knows that the Veiths, who owned,

harbored, and kept six dogs on the property but had no liability

insurance——even    though   there     had   been    a   previous     dog   bite

incident involving a woman who kept her horse with the Veiths——

are in no position to pay damages to Julie Augsburger.                Thus, it

must be acting in the belief that it is serving some higher

purpose when it denies recovery.

      ¶88   The first purpose, apparently, is to protect landlords
from liability for the torts of their tenants.

                                    11
                                                                          No.    2012AP641.dtp

       ¶89   The    majority       concludes        that       "mere    ownership       of   the

property on which a dog resides is not sufficient to establish

that    an   individual       is    an     owner    of     a    dog     under    Wis.    Stat.

§ 174.02."          Majority        op.,     ¶¶3,        48.       This       principle       is

unassailable.        It is supported by our decisions in Gonzales v.

Wilkinson,     68    Wis. 2d 154,           158,    227        N.W.2d 907       (1975),      and

Smaxwell v. Bayard, 2004 WI 101, ¶¶46-54, 274 Wis. 2d 278, 682

N.W.2d 923.     The holdings in these cases are not in jeopardy.

       ¶90   Nonetheless, the majority is unwilling to acknowledge

the pervasive and unusual influence that Mr. Kontos had over the

Veith    family's     circumstances.               The     "mere       ownership"     of     the

property is but one of the circumstances present in this case;

it is the totality of all the circumstances that demonstrates

that Kontos harbored the dogs that mauled Julie Augsburger.

       ¶91   The     circuit        court     stated       unequivocally          that       "No

landlord tenant relationship existed" between Mr. Kontos and the

Veiths.      Yet     the   majority         seeks    to     keep       this   issue     alive,

saying: "We need not determine whether there was a landlord-

tenant relationship in this case."                  Majority op., ¶30.
       ¶92   In truth, this case is not about landlord liability

for dog bites.         This case is about a harborer's liability for

dog bites.         The majority's concern about landlords on these

facts is not well founded.

       ¶93   A second purpose is to demonstrate the court's respect

for the American Law Institute's Restatements of the Law.                                    The

majority     notes     that        "[t]he    Restatement . . . emphasizes                    the

importance of considering whether the landowner is residing on
the premises with the dog," and that "[t]he fact scenario in

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this case . . . matches an example provided in the Restatement

(Second) of Torts § 514."              Majority op., ¶¶ 32-33.               This example

states:

    Thus a father, on whose land his son lives in a
    separate residence, does not harbor a dog kept by his
    son, although he has the power to prohibit the dog
    from being kept and fails to exercise the power or
    even if he presents the dog to his son to be so kept.
Restatement (Second) of Torts § 514 cmt. a (1977).

    ¶94      The majority's focus on the Restatement (Second) of

Torts   is   misguided.           Section       514    concerns      "Wild    Animals   or

Abnormally Dangerous Domestic Animals."                       The example from § 514

dates   back      at   least    to     1938    and     the    Restatement     (First)   of

Torts, in which it also appears.                       See Restatement (First) of

Torts § 514 cmt. a (1938).               That section, too, dealt with "Wild

Animals or Abnormally Dangerous Domestic Animals."

    ¶95      The       Restatement       considers           dogs,   however,      to   be

domestic animals that are not abnormally dangerous.                           Restatement

(Second)     of    Torts       § 509    cmt.       f   (1977).4       Indeed,     neither

Restatement        scheme      imposes        strict     liability     on     owners    or

harborers of dogs.          Under the Restatement:

    4
        Restatement (Second) of Torts § 509 cmt. f (1977) states:

    Although dogs, even hunting dogs, have no material
    utility comparable to cattle, horses and other
    livestock, they have from time immemorial been
    regarded as the friends and companions of man.     The
    great   majority  of  dogs   are  harmless,   and  the
    possession of characteristics dangerous to mankind or
    to livestock is properly regarded as abnormal to them.
    Consequently the possessor of a dog is not liable for
    its biting a person or worrying or killing livestock
    unless he has reason to know that it is likely to do
    so.


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      one who possesses or harbors a domestic animal that he
      does not know or have reason to know to be abnormally
      dangerous, is subject to liability for harm done by
      the animal if, but only if,

             (a) he intentionally causes the animal to do the
             harm, or

             (b) he is negligent in failing to prevent the
             harm.
Restatement (Second) of Torts § 518 (1977).

      ¶96    The     treatment        of    dog         bite    liability       under     the

Restatement differs from the treatment of dog bite liability

under the Wisconsin statute even before the 1982 shift to strict

liability.         Our statute provided for liability of owners of

vicious or mischievous dogs even if the owner lacked scienter as

to    the    dog's      nature      and     did      not       act     intentionally       or

negligently.            See    Chambliss,          52      Wis. 2d at          530.       The

Restatement, on the other hand, requires negligence or intent in

the   absence      of   scienter.          Needless       to    say,    the     Restatement

scheme      differs     greatly       from        the     strict       liability      scheme

currently in place.

      ¶97    Affirming        the    circuit        court's          determination       that

Kontos      harbored     the        dogs     under        the    totality        of     these

circumstances would not offend the Restatement——the Restatement

has no relation to Wisconsin's dog bite statute.                          Our definition

of "harbor" in a strict liability statute passed in 1982 should

not be guided by a comment on a negligence scheme from 1938.

                                             V

      ¶98    In conclusion, the majority misses the mark in its

application of the law to the facts.                     Only by ignoring the clear
purpose of Wisconsin's strict liability dog bite statute and

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looking   instead     to     outmoded         authority       and     a     canon    of

construction    contradicted        by    the       statute   itself,        does   the

majority arrive at its conclusion that Kontos did not "harbor"

the Veiths' dogs.          Yet this result forecloses any realistic

possibility that Julie Augsburger will recover damages for her

medical   expenses,   as     well    as       her    scars    and    her     pain   and

suffering.     This outcome contradicts the language, design, and

purpose of the statute, and unfairly victimizes Augsburger a

second time.

    ¶99    For the foregoing reasons, I respectfully dissent.




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