ROCHESTER, Minn. (CN) — Minnesota’s Court of Appeals delved into the fiddly depths of the English language late Thursday morning in evaluating claims brought by a woman bitten by a state trooper’s dog.
Cristina Berrier, an employee at a Chevrolet dealership in Owatonna, Minnesota, brought negligence and strict liability claims against the Minnesota State Patrol in 2019 after she was bitten by a K-9 dog while the dealership serviced an MSP vehicle.
On the eve of trial late in 2022, the agency moved for dismissal of Berrier’s strict liability claim under a statute governing liability for dog bites, arguing that it was not properly disclosed and was barred by sovereign immunity. Steele County Judge Ross Leuning denied that motion, finding the Minnesota Legislature had waived immunity in the text of the statute and that the MSP was at the very least aware of the claim.
The Minnesota Court of Appeals primarily considered Leuning’s immunity findings at oral arguments Thursday. Minnesota's dog-bite statute, Assistant Attorney General Alexander Hsu argued, doesn't make the state liable for MSP dogs. The statute’s assignment of liability to "the owner" of a dog, he said, wasn't enough to waive the state's sovereign immunity.
"This issue has already been decided by this court,” Hsu argued, pointing to an unpublished appeals court opinion from 2019, McClendon v. Roy. In that case, a prisoner’s dog-bite claims were dismissed on the basis of sovereign immunity, and the court of appeals affirmed the dismissal.
Beyond that, Hsu said, none of the cases Berrier’s attorney Grant Borgen cited “actually hold for the proposition that the state should be included in the term ‘owner.’”
Hsu was referencing a portion of the dog-bite statute which states that “the owner of the dog is liable” for injuries from unprovoked dog bites where the bite victim is “acting peaceably” in a place they are legally allowed to be.
Arguing for Berrier, Borgen said the phrase "the owner" left the state none of the wiggle room Hsu claimed.
“‘The owner’ is a definite and ascertainable person,” the attorney said. “If you own the dog, you are responsible for the bite.”
He pointed to a 2005 case, Hyatt v. Anoka Police Department, in which the Minnesota Supreme Court found that “municipal corporations” like cities and counties are not entitled to immunity under the dog-bite statute.
“The Supreme Court found that ‘owner’ included government-owned dogs,” Borgen said. “We can talk about the rule of absurdity, you know– the Legislature did not intend to create a distinction between dogs owned by the state on the one hand and municipalities on the other hand.”
The three-judge panel, led by Judge Theodora Gaïtas, convened in the southern Minnesota city of Rochester rather than its usual meeting place in the state capital of St. Paul. Judge Elise Larson, the appeals court's newest member, led much of the court's questioning.
Grilling Hsu, Larson questioned whether a decision in the state’s favor would render waiver of the state’s immunity nearly impossible without an explicit statement to that effect.
Hsu said that was entirely possible. “Intent must be express, and it must be specific,” he said. Even if the Legislature opts never to waive the state’s immunity, he said, that would be its prerogative.
Speaking after the hearing, Borgen said he was hopeful the panel would remand the case for trial, and briefly discussed the notice issue, which both he and Hsu had acknowledged as secondary during the hearing. While Berrier’s initial complaint didn’t cite the dog-bite statute specifically, Borgen said, the MSP had specifically argued against the elements of a claim under that statute in its answer. Early correspondence in the litigation had also seen both parties discussing it specifically.
As to the “the owner” question, Borgen said, there could be no doubt.
“It’s a definite phrase. It’s talking about one person and only one person." he said.
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