LEIENDECKER v. B.K. Teachout Investigations, Inc., doing business as Teachout Security Services, Inc., Defendant/Cross-Defendant/Cross-Plaintiff-Appellee. (2026)

Plaintiff, Eric Leiendecker, was attacked by a goose while leaving one of Ascension Genesys Hospital's facilities where he worked as a contractor. Plaintiff suffered injuries requiring surgery and sued Ascension and its security vendor, Teachout Security Services (Teachout), for negligence and premises liability. The trial court granted summary disposition for both defendants under MCR 2.116(C)(8) (failure to state a claim on which relief could be granted), relying on the common-law doctrine of ferae naturae, that a defendant cannot be liable for the actions of wild animals if it does not exercise dominion, control, or possession over them. We agree that ferae naturae precludes relief for plaintiff's negligence claims against defendants, but not plaintiff's premises liability claim against Ascension. Thus, we reverse the dismissal of plaintiff's premises liability claim against Ascension only, and affirm in all other respects.

I. FACTUAL AND PROCEDURAL HISTORY

Because the trial court granted summary disposition to defendants under MCR 2.116(C)(8), we are limited to reviewing the facts alleged in plaintiff's second amended complaint.

Plaintiff was attacked and knocked to the ground by a goose while leaving his workplace, an Ascension facility in Grand Blanc. Plaintiff was assisted by one of Teachout's security officers, who drove him to the emergency department. The security officer told him that the goose had been living on the hospital premises for several days or longer and had been an ongoing danger to people walking in the area. At the emergency department, an Ascension employee told plaintiff that she was attacked by a goose a week earlier and she reported the attack to Ascension. When plaintiff's wife arrived at the emergency department at Ascension to visit plaintiff, a Teachout security officer informed her that a goose previously attacked several other people and chased cars in the area. The emergency department ultimately determined plaintiff suffered a fractured right hip from the attack. Plaintiff underwent a total right hip replacement and was unable to work or care for himself independently, and needed additional medical care including physical therapy.

Plaintiff sued Ascension under stated theories of “premises liability and negligence,” alleging Ascension knew the goose was dangerous, owed plaintiff a duty to maintain the premises in a safe condition, failed to remove the goose or warn of its presence, and that failure caused plaintiff's injuries. Paragraph 22 of plaintiff's second amended complaint specifically alleged Ascension was “the owner and/or possessor of the property.” Plaintiff also sued Teachout under a stated theory of “negligence,” alleging that as Ascension's agent, Teachout owed plaintiff the same duties Ascension owed plaintiff, and that Teachout's failure to remove the dangerous goose, warn of its presence, or advise Ascension of the goose caused plaintiff's injuries. Plaintiff did not allege Teachout owned or possessed the subject property.

The parties engaged in some discovery and went to mediation. After mediation failed, Ascension filed a crossclaim against Teachout, alleging Teachout breached its contract because it was required to indemnify Ascension. After filing an answer to the crossclaim, Teachout filed its own crossclaim against Ascension to claim that Ascension had also breached the contract by not indemnifying Teachout. Ascension and Teachout also answered plaintiff's complaint. Ascension asserted affirmative defenses that the goose attack was an act of God and unforeseeable, and that Ascension was not in possession or control of the premises where plaintiff was injured. Teachout did not raise any affirmative defenses.

Teachout moved for summary disposition under MCR 2.116(C)(8), arguing that plaintiff's claims should be dismissed under the doctrine of ferae naturae because the goose, a wild animal, was not within the possession or control of Teachout or Ascension, and plaintiff never alleged Teachout had control or possession over the goose. Teachout cited Glave v Michigan Terminix Co, 159 Mich App 537, 407 N.W.2d 36 (1987), for the proposition that a landowner is not liable for the injury caused by a wild animal. Teachout also argued that plaintiff's claims sounded exclusively in premises liability, not negligence. Ascension filed a concurring motion adopting Teachout's legal arguments relating to applying ferae naturae and requested the same relief.

Plaintiff responded, arguing Teachout's motion should be denied because even though the goose was a wild animal, defendants knew, or should have known, that the goose was on the property and attacking people. Plaintiff also argued that it pleaded a viable claim against Teachout, whether it sounds in negligence or premises liability.

After hearing oral argument on Teachout's motion for summary disposition, the trial court issued its written opinion and order granting summary disposition under MCR 2.116(C)(8) to defendants and dismissing plaintiff's case in full. Specifically, the trial court held that Glave controlled and that:

before a party may be found liable for actions of a wild animal, it must be shown that the animal was subject to the party's dominion, control, or possession. Thus, because [p]laintiff failed to allege that the goose that attacked him was subject to dominion, control, or possession of either of [d]efendants, dismissal of the claim is proper pursuant to MCR 2.116(C)(8).

The trial court did not consider Teachout's argument regarding whether plaintiff should have pleaded a claim of premises liability against Teachout, instead of negligence. Plaintiff now appeals as of right.

II. ANALYSIS

On appeal, plaintiff argues the trial court erred by granting summary disposition to defendants. We reverse summary disposition in part as to Ascension, but affirm as to Teachout.

A. STANDARDS OF REVIEW

“A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on the factual allegations in the complaint.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159-160, 934 N.W.2d 665 (2019). The trial court must decide the motion on the pleadings alone, id., and it must accept all factual allegations and reasonable inferences or conclusions that can be drawn from the facts as true. Detroit Int'l Bridge Co v Commodities Export Co, 279 Mich App 662, 670, 760 N.W.2d 565 (2008). “A motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery.” El-Khalil, 504 Mich. at 160, 934 N.W.2d 665. This Court reviews de novo whether the pleadings sufficiently stated a claim to survive a motion under MCR 2.116(C)(8). Glasker-Davis v Auvenshine, 333 Mich App 222, 229, 964 N.W.2d 809 (2020).

B. FERAE NATURAE DOCTRINE IN NEGLIGENCE ACTIONS

A claim of ordinary negligence “may be brought for the overt acts of a premises owner on his or her premises.” Nathan, Trustee of Estate of Charles v David Leader Mgt., Inc., 342 Mich App 507, 512, 995 N.W.2d 567 (2022) (cleaned up; emphasis added). And when negligence is alleged as to wild animals, the ferae naturae doctrine generally applies to preclude relief, absent evidence defendant(s) “tamed, confined, or otherwise controlled” the wild animal. Glave, 159 Mich App at 540, 407 N.W.2d 36.

In Glave, the defendants sprayed the roofs on several city-owned buildings in Battle Creek in order to remove pigeons. Id. at 539, 407 N.W.2d 36. The plaintiff alleged that the pigeons then flocked to her home, where the pigeons’ feces caused the plaintiff to suffer a fungal infection. Id. The plaintiff sued the defendants for nuisance and ordinary negligence, but not premises liability. Id. This Court in Glave held that the pigeons were “ferae naturae (wild things),” and explained that individuals do not have any property interest in ferae naturae “until human control is exercised by taming or confinement.” Id. at 540, 407 N.W.2d 36 (italics added).

This Court held as a matter of law that the defendants could not be liable for the plaintiff's injuries without exercising “dominion, control, or possession” over the pigeons. Id. at 541, 407 N.W.2d 36. Such control could be shown by, for example, building artificial ponds and placing bait and lures to deliberately attract the birds. Id. at 540-541, 407 N.W.2d 36; Andrews v Andrews, 242 N.C. 382, 88 S.E.2d 88 (1955).¹ The only active steps taken by the defendants in Glave were to remove the pigeons from their properties. Glave, 159 Mich App at 539, 407 N.W.2d 36. This Court held that the plaintiff in Glave failed to state a claim for negligence and dismissed the case under MCR 2.116(C)(8) because the plaintiff did not allege any dominion, control, or possession by the defendants over the pigeons. Id. at 541, 407 N.W.2d 36.

The trial court correctly applied Glave to the defendants here to preclude any negligence claims as a matter of law. Plaintiff did not allege Ascension or Teachout had dominion, control, or possession over the goose that attacked plaintiff. Rather, plaintiff alleged that Ascension ² was the “owner and/or possessor of the property” where plaintiff was injured by the goose. That is a claim sounding in premises liability, which we explain below.

C. PLAINTIFF'S PREMISES LIABILITY CLAIM AGAINST ASCENSION SURVIVES MCR 2.116(C)(8)

Plaintiff alleges that he was an invitee on Ascension's property, that the goose was a dangerous condition on the land, and that Ascension failed to warn plaintiff of the goose or to take steps to remove the goose from Ascension's property. “If the plaintiff's injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence.” Nathan, 342 Mich App at 512, 995 N.W.2d 567 (cleaned up). And while premises liability is a form of negligence, this Court distinguished the two claims such that an animal can be considered a dangerous condition on the land for purposes of a premises-liability claim. Tripp v Baker, 346 Mich App 257, 266-268, 12 N.W.3d 45 (2023).

In Tripp, the defendant left her dog alone in her backyard. When the plaintiff, who was standing in the neighboring yard, placed his hand on top of the fence separating him from the dog, the dog bit the plaintiff's hand, which “required significant medical care.” Id. at 261, 12 N.W.3d 45. Relying on the Second Restatement of Torts, which defines a “condition on the land” as an artificial or natural “risk ․ [a visitor] encounter[s]” when they enter on to another's land, 2 Restatement Torts, 2d, § 342, comment e, this Court held “a dog could certainly be considered a condition on the land for purposes of premises liability because it poses an artificial risk to a visitor when they enter onto another's land.” Tripp, 346 Mich App at 266-267, 12 N.W.3d 45.

This Court explained that a premises liability claim involving a dog “requires a showing that: (a) the dog is a condition on the land and (b) the defendant had knowledge of the dog's dangerous tendencies.” Tripp, 346 Mich App at 268-269, 12 N.W.3d 45.³ We recognize the factual distinction between this case and Tripp in that dogs are domesticated (generally) and controllable (generally) in ways that the goose that attacked plaintiff is not. But the Tripp decision did not rely on the domesticated nature of the dog, implicitly or explicitly, to determine whether it was “of the land.” And conditions of the land can be natural or artificial and a goose, like a dog, can pose an “artificial risk” to invitees. Tripp, 346 Mich App at 267, 12 N.W.3d 45. While geese can fly and dogs cannot, the permanence, or lack thereof, of a dangerous condition does not determine liability of the property owner. 2 Restatement Torts, 2d, § 342, comment g. Thus, plaintiff states a cognizable premises liability claim if plaintiff pleaded the goose is a dangerous condition of the land about which the landowner knew or should have known. Plaintiff's second amended complaint sufficiently does that.⁴

First, plaintiff's complaint refers to the goose as a “dangerous condition” on Ascension's land. Plaintiff also alleges the goose had been living on the land for at least several days and was nesting. Second, plaintiff alleges that defendant Ascension knew of the danger the goose posed, because of prior reported attacks, and failed to appropriately respond. Thus, plaintiff's pleading is legally sufficient to survive a motion brought under MCR 2.116(C)(8) as to Ascension only.

III. CONCLUSION

A goose is a wild animal and plaintiff's negligence claims against defendants were properly dismissed under MCR 2.116(C)(8) citing Glave. But because plaintiff alleged that the goose was a condition of the land whose dangerousness was known to Ascension, and Ascension failed to warn plaintiff about the dangerous goose, he has raised a legally sufficient premises liability claim against Ascension. Therefore, we affirm the trial court's order dismissing the negligence claims against Teachout and Ascension, reverse as to Ascension on the premises liability claim, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

As Michiganders know, geese can be foul-mannered, like wild or domesticated animals of all sorts. And when animals attack, victims are not concerned about whether the attackers are wild or domesticated. But under common law, the doctrine of ferae naturae just applies to wild animals, and a goose is a wild animal, so the trial court invoked that doctrine to absolve the property owner, Ascension Genesys Hospital (Ascension), of liability by awarding it summary disposition pursuant to MCR 2.116(C)(8) of plaintiff's claim of premises liability. In doing so, the trial court decided that a property owner can never be responsible on a premises-liability theory for the injuries caused by a wild animal, even when the owner invites a contractor onto property where a wild animal has persistently caused injuries to those who dare to set foot on the land. I do not believe that Michigan premises-liability law allows for such a sweeping exemption from liability when the owner knows of the danger, but chooses to do nothing to warn or protect invitees who may suffer injuries at the hands (or claws or beaks) of wild animals, so I join the majority ruling that the trial court erred by granting summary disposition under the standards applicable to analysis under MCR 2.116(C)(8).

Our Supreme Court has often stated that “[a] motion under MCR 2.116(C)(8) may only be granted when a claim is so clearly unenforceable that no factual development could possibly justify recovery.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160, 934 N.W.2d 665 (2019). In so holding, our Supreme Court has sharply distinguished threshold relief under MCR 2.116(C)(8) from post-discovery relief under MCR 2.116(C)(10). Id. at 162, 934 N.W.2d 665. Denial of relief pursuant to MCR 2.116(C)(8) simply affords the plaintiff an opportunity to develop evidence in support of a claim, whereas denial of relief under MCR 2.116(C)(10) invites the plaintiff to feather the nest by seeking damages at trial.

As both the majority and the dissent recognize, the challenge in this case is to decide how—if at all—the doctrine of ferae naturae applies to a premises-liability claim. The dissent concludes that “the majority misapplies Tripp v Baker, 346 Mich App 257, 266-268, 12 N.W.3d 45 (2023), a domitae naturae case, to this ferae naturae case.” I acknowledge that the goose in this case, unlike the dog in Tripp, should be characterized as a wild animal subject to the doctrine of ferae naturae. See Glave v Mich Terminix Co, 159 Mich App 537, 540, 407 N.W.2d 36 (1987) (asserting that “the trial court did not err by determining as a matter of law that the pigeons were wild”). But I do not find that that characterization of the goose in this case is fatal to plaintiff's premises-liability claim at this early stage of the proceedings.

Premises-liability law may include an exception to the preclusive effect of the doctrine of ferae naturae “when a landowner has actual knowledge of an unreasonable risk of harm presented by a wild animal on his property (even while outside) and the patron neither knows nor reasonably should know of this risk.” Hillis v McCall, 602 S.W.3d 436, 442 n 10 (Texas Sup Ct. 2020) (case in which the plaintiff was bitten by a brown recluse spider).¹ To be sure, if the injured invitee and the property possessor had essentially the same knowledge of the danger of a wild animal on the premises, then summary disposition for the property possessor is appropriate. See, e.g., Landings Ass'n, Inc v Williams, 291 Ga. 397, 399, 728 S.E.2d 577 (2012) (case involving a fatal attack by an alligator). But when the property possessor knows about the risk of a wild animal and the invitee lacks such knowledge, the property possessor has a duty to warn or protect the invitee.² In the second amended complaint, plaintiff alleges that Ascension knew about “the presence of the dangerous goose that had been viciously attacking passersby for several days prior to the subject incident, but failed to take measures to remove the goose and/or warn of its presence and threat of attack.” Those allegations in the complaint are sufficient to survive summary disposition analysis under MCR 2.116(C)(8).

I understand that some readers may find nothing inherently or actually dangerous about a goose, as opposed to a wild animal such as a wolf or a bear. But the distinction between the danger presented by the goose in this case and a wolf or a bear is one of degree, not kind. The goose here was sufficiently menacing to cause plaintiff to suffer a serious hip injury. Whether the goose was not dangerous enough to pose a threat to plaintiff, or whether plaintiff knew or should have known about the goose, must be developed during the discovery process. When discovery is completed, Ascension may move for summary disposition under MCR 2.116(C)(10), and plaintiff's claim of premises liability may prove unsustainable as a matter of fact. But at this early stage, accepting as true the allegations in plaintiff's second amended complaint, I find no basis for awarding summary disposition under MCR 2.116(C)(8), so I join the majority opinion denying such relief under MCR 2.116(C)(8) to Ascension.

As it turns out, what is good for the goose is not always good for the gander.

The “goose” here is the doctrine of domitae naturae, while the “gander” is the doctrine of ferae naturae. Domitae naturae relates to domesticated animals, while ferae naturae relates to wild animals. See Massengile v Piper, 294 Mich. 653, 657-658, 293 N.W. 897 (1940) (Sharpe, J., dissenting), citing Andrews v Smith, 324 Pa. 455, 188 A. 146 (1936)¹ ; Aikens v Dep't of Conservation, 387 Mich. 495, 502, 198 N.W.2d 304 (1972), citing People v Zimberg, 321 Mich. 655, 658, 33 N.W.2d 104 (1948). Both are long-standing doctrines of our common law, but they are distinct doctrines, they apply in distinctly different ways, and they require distinctly different results in our legal system.

But the majority conflates them, and in doing so it opens the floodgates to a potential gaggle of claims that are simply not recognized in the common law. Until now, at least. But the majority has now determined that those on whose land wild animals enter may find themselves subject to legal theories of liability that have never before been recognized in Michigan. They may find that their goose is indeed cooked. The majority accomplishes this by ignoring Michigan caselaw and by altering our common law despite lacking the authority to do so. I must therefore respectfully dissent from the majority's reversal of the trial court's order granting summary disposition in favor of defendant Ascension Genesys Hospital on plaintiff's premises liability claim. I otherwise concur in the majority opinion.

As the majority recounts, Eric Leiendecker was attacked by a wild goose on one of Ascension's properties. He suffered unfortunate injuries. Leiendecker sued Ascension, as the owner of the property, claiming that Ascension “owed a duty to maintain the subject premises in a safe condition and to warn[² ] of any dangers that they know, or should have known, may cause harm to their invitees[³ ].”

The classic example of liability arising in the context of domitae naturae is a dog bite. Under the common law in Michigan, the keeper of a domesticated animal can be held strictly liable ⁴ when “(1) one is the possessor of the animal, (2) one has scienter of the animal's abnormal dangerous propensities, and (3) the harm results from the dangerous propensity that was known or should have been known.” Trager v Thor, 445 Mich. 95, 99, 516 N.W.2d 69 (1994). “Possessor” in this context means “owner” or “keeper,” and “keeper” “cannot be fairly construed as anything short of the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner in possession.” Id. at 100, 103, 516 N.W.2d 69 (citation omitted).

Alternatively, the common law of Michigan provides that the keeper of a domesticated animal can be held liable under a negligence theory:

[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen.” [Id. at 106, 516 N.W.2d 69 (citation omitted).]

By contrast, wild animals (ferae naturae) are by their very nature not subject to human control, they therefore “belong[ ] to the state and [are] subject to the state's power of regulation and control,” and an individual may “acquir[e] in such game only the qualified property interest which the state permits.” Glave v Michigan Terminix Co, 159 Mich App 537, 539, 407 N.W.2d 36 (1987). As a consequence, when a wild animal causes injury, a person may be held liable “[b]y asserting dominion over [it] and keeping it.” Id. at 540, 407 N.W.2d 36. But the person “could not be liable without exercising dominion, control or possession over [the animal].” Id. at 541, 407 N.W.2d 36.⁵

The majority entirely ignores Glave’s preclusion of liability, in the ferae naturae context, unless the defendant exercised “dominion, control or possession” over a wild animal. Instead, the majority misapplies Tripp v Baker, 346 Mich App 257, 266-268, 12 N.W.3d 45 (2023), a domitae naturae case, to this ferae naturae case. Tripp was a dog bite case arising in the premises liability context. The Court noted that a premises possessor generally “has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards.” Id. at 263, 12 N.W.3d 45 (citation omitted). Ultimately, this Court held, under Lugo v Ameritech Corp, Inc, 464 Mich. 512, 629 N.W.2d 384 (2001),⁶ that there remained a genuine issue of fact as to whether the dog “was an open and obvious danger.” But the Court nonetheless affirmed the trial court's dismissal of the plaintiff's premises liability claim on the ground that the plaintiff was a trespasser, not an invitee.

There are a number of problems with the majority's reliance on Tripp. First, Tripp’s premises liability analysis relied on Lugo, which was reversed by Kandil-Elsayed, 512 Mich. at 132-143, 1 N.W.3d 44. Second, Tripp’s premises liability analysis was in any event dictum, because it was not essential to the Court's ruling. See Auto Owners Inc Co v Seils, 310 Mich App 132, 160 n 7, 871 N.W.2d 530 (2015). Third, the premises liability claim in Tripp was asserted not against the dog-owner (who was a tenant at the property), but rather against the landlords for their failure to repair a fence and their alleged knowledge of the aggressive nature of the dog it contained. Further, Tripp appears to reflect a lack of clarity as to whether, in that domitae naturae context, the Court was considering the premises possessor's liability (for the dog bite injury) under a strict liability or a negligence standard. For example, while noting that “premises liability required a plaintiff to prove the elements of negligence,” Tripp, 346 Mich App at 266, 12 N.W.3d 45 (citation and internal quotation marks omitted), it concluded that the plaintiff's complaint was “facially valid” because it alleged, in part, that “the defendant had knowledge of the dog's dangerous tendencies,” id. at 269, 12 N.W.3d 45, (a strict liability standard, see Trager, 445 Mich. at 99, 516 N.W.2d 69).

Most importantly, the majority errs by importing into the law of ferae naturae the distinctly different legal principles that apply in the context of domitae naturae.⁷ As this Court made clear in Glave, liability does not arise in the ferae naturae context “without exercising dominion, control or possession” over the wild animal. Glave, 159 Mich App at 541, 407 N.W.2d 36. As in Glave, plaintiff made no such allegation in his complaint in this case. Consequently, plaintiff failed to state a claim on which relief could be granted, and the trial court properly granted summary disposition under MCR 2.116(C)(8).⁸

This Court's unpublished opinion in Heuschneider v Wolverine Superior Hospitality, Inc, unpublished opinion per curiam of the Court of Appeals, issued June 4, 2019 (Docket No. 341053), 2019 WL 2360266 further supports this conclusion.⁹ In Heuschneider, the plaintiff filed suit against a hotel owner after suffering a spider bite while staying in a hotel room. As this Court recounted:

The trial court granted summary disposition for lack of legal duty and failure to present evidence of foreseeability. The court found that no legal duty was owed to the plaintiff based on the doctrine of ferae naturae, or wild things, over which defendant had no control․ The trial court found that no duty was owed to the plaintiff based on the holding in Glave v. Michigan Terminix Co., 159 Mich App. 537, 407 N.W.2d 36 (1987), which ascribed a duty only where a wild animal is under the control of an alleged tortfeaser. “By asserting dominion over a wild animal and keeping it, an individual may be held liable for personal injuries caused by the animal's conduct.” Id. at 540, 407 N.W.2d 36. Here, the court found the fact that the spider was a wild animal an absolute defense to each of plaintiff's claims of premises liability, innkeeper's liability, negligence, and nuisance. [Heuschneider, unpub. op. at 2.]

This Court concluded that the trial court erroneously dismissed the plaintiff's claim under the innkeeper's statute, because a spider meets the common definition of “vermin” and the innkeeper's statute therefore applied. The Court stated:

The doctrine of ferae naturae has its genesis in the common law. The common law remains in force until modified. Wold Architects and Engineers v. Strat, 474 Mich. 223, 233, 713 [N.]W.2d 750 (2006). “Our statute limiting the liability of an innkeeper is in derogation of the common law and must be strictly construed.” Davis v. Cohen, 253 Mich. 330, 335, 235 N.W. 173 (1931). The trial court explicitly found that the innkeepers’ liability statute was inapplicable to this case because it found that spiders were not vermin. This was erroneous. [Heuschneider, unpub. op. at 3.]

Significantly, this Court in Heuschneider only found the doctrine of ferae naturae to be inapplicable with respect to the plaintiff's claim under the innkeeper's statute. And that, of course, is because the Legislature is empowered to alter the common law. See People v Woolfolk, 304 Mich App 450, 475, 848 N.W.2d 169 (2014). Heuschneider left the doctrine of ferae naturae in place with respect to the plaintiff's premises liability, negligence, and nuisance claims, reversing the trial court's grant of summary disposition only on the plaintiff's statutory “innkeeper's” claim.

As our Supreme Court recently reiterated in Kandil-Elsayed v F & E Oil Inc, 512 Mich. 95, 1 N.W.3d 44 (2023):

All negligence actions, including those based on premises liability, require a plaintiff to prove four essential elements: duty, breach, causation, and harm. The first element, duty, is essentially a question whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. [Id. at 110, 1 N.W.3d 44 (citation and quotation marks omitted).]

The Court also noted that “[i]t is well settled in Michigan that the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides.” Kandil-Elsayed, 512 Mich. at 112, 1 N.W.3d 44.¹⁰

This Court made clear in Glave and Heuschneider that, absent the exercise of dominion, control, or possession over a wild animal, there exists no legal duty with respect to any injuries that the wild animal may cause. That is because the doctrine of ferae naturae eliminates that duty. There consequently can be no liability under a premises liability theory and, the question of duty being one of law, Kandil-Elsayed, 512 Mich. at 112, 1 N.W.3d 44, the majority errs by allowing plaintiff's premises liability claim to go forward instead of affirming the trial court's dismissal of that claim under MCR 2.116(C)(8).

The majority compounds its errors by implicitly applying (and even expanding upon) the caselaw of other jurisdictions. It does so by blindly applying Tripp—which expressly relied upon out-of-state cases in concluding that a dog can be a dangerous condition of the land. Yet, the out-of-state cases on which Tripp relied ¹¹ were themselves, in addition to other distinguishing features, “dog bite” cases, i.e., domitae naturae, having nothing whatsoever to do with the doctrine of ferae naturae. See Village Green Alzheimer's Care Home, LLC v Graves by and Through Graves, 650 S.W.3d 608 (Tex App 2021), and Giacalone v Housing Auth. of Town of Wallingford, 306 Conn. 399, 51 A.3d 352 (2012).¹²

Even if we were to look to out-of-state cases for guidance, a more appropriate one would be Nicholson v Smith, 986 S.W.2d 54 (Tex App 1999). In Nicholson, the plaintiff sued a recreational park and its owners after her now-deceased husband was stung by fire ants while he worked on the underside of his house trailer. The Texas Court of Appeals affirmed the dismissal of the plaintiff's claim because “[t]he doctrine of ferae naturae defeats [the plaintiff's] premises liability claim as a matter of law.” Id. at 64. I appreciate that the court in Nicholson did not establish a bright line rule, and it thus left open the possibility, under the common law of Texas, that a claim might conceivably be actionable “with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboard, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.”¹³ Id. at 62. But the Texas Court of Appeals found that such exceptional circumstances did not exist and were not alleged. Instead, the court in Nicholson—citing Glave, no less—affirmed the dismissal of the claim under the applicable law:

In general, the law does not require an owner or possessor of land to anticipate the presence of, or guard invitees against the harm from, wild animals unless he or she has reduced them to possession, harbors them, or has introduced onto the premises wild animals which are not indigenous to the locality. [Id. at 61.]14

The majority also errs in a couple of other respects. First, it does not establish a clear and workable new standard for this new type of premises liability claim. Specifically, it finds that Leiendecker sufficiently alleged that Ascension “knew or should have known” that the goose was an “artificial risk to visitors” that created “a dangerous condition of the land.” But it ultimately concludes that “because plaintiff alleged that the goose was a condition of the land whose dangerousness was known to Ascension and Ascension failed to warn ¹⁵ [Leiendecker] about the dangerous goose, he has raised a legally sufficient premises liability claim against Ascension.” I am left wondering what precisely will be required, under the now-revised common law of Michigan, for a plaintiff to plead and succeed on a premises liability claim arising out of an injury caused by a wild animal. And I am sure the trial courts will have goose bumps anticipating the “ludicrous shifts” to which our imaginations will be put going forward. Glave, 159 Mich App at 541, 407 N.W.2d 36.

Second, and importantly, the majority drastically alters our legal landscape by, as noted, effecting a change in our common law. And it not only does so without a proper legal basis, but it does so without authority and without exercising appropriate prudence. As this Court has stated:

[W]e are mindful that we are an error-correcting court. Burns v Detroit (On Remand), 253 Mich App 608, 615, 660 N.W.2d 85 (2002). As such, we must confine our role to that function. Were we inclined to effect a significant change to Michigan law, such as by abrogating established common law in favor of a rule more to our liking, “prudence would counsel against it because such a significant departure from Michigan law should only come from our Supreme Court [or the Legislature], not an intermediate appellate court.” Teel v Meredith, 284 Mich App 660, 666, 774 N.W.2d 527 (2009) (declining to recognize a cause of action for spoliation of evidence); see also Dahlman v Oakland Univ., 172 Mich App 502, 507, 432 N.W.2d 304 (1988) (declining to recognize a cause of action for breach of an implied covenant of good faith and fair dealing “because such a radical departure from the common law and Michigan precedent should come only from the Supreme Court”). [Woolfolk, 304 Mich App at 475, 848 N.W.2d 169.]

See also, MK by Next Friend Knaack v Auburnfly, LLC, unpublished opinion per curiam of the Court of Appeals, issued December 17, 2024 (Docket No. 364577), unpub. op. at 4, ––– Mich.App. ––––, ––––, ––– N.W.3d ––––, 2024 WL 5148278 (2024) (“[I]t is not our role, as an intermediate appellate court, to change the common law; any such change should instead come from the Legislature or our Supreme Court.”) (citation omitted). The majority nonetheless, without waiting for those who might properly change the common law, plunges forward headlong into uncharted waters. Its decision may prove to be the goose that laid the golden egg for the more litigious members of our society.

I would instead uphold and apply Michigan's existing and well-established common-law doctrine of ferae naturae and affirm the trial court's grant of summary disposition in favor of Ascension on Leiendecker's premises liability claim. Because the majority does not do so, I respectfully dissent in that regard and otherwise concur in the majority opinion.

FOOTNOTES

1.   Andrews also involved geese, but Andrews was a nuisance claim in which the owner was held liable for the geese's actions on his neighbor's land because the owner intentionally attracted and then refused to abate the geese. Andrews, 242 N.C. at 387-388, 88 S.E.2d 88.

2.   “Premises liability is conditioned on the presence of both possession and control over the land,” Scola v JP Morgan Chase Bank, Nat'l Assoc, 506 Mich. 924, 949 N.W.2d 147 (2020) (emphasis added), and plaintiff's second amended complaint failed to allege that Teachout had possession and control over Ascension's premises. Thus, to the extent plaintiff's claim against Teachout can be interpreted as a premises liability claim, it is legally insufficient.Instead, plaintiff argues that Teachout can be held liable as the agent of Ascension, reasoning “a contractor to whom a task is delegated by a property owner may be liable even if it does not own the subject property.” But in his second amended complaint, plaintiff makes no allegations as to what duties were actually delegated to Teachout as Ascension's contractor and even if plaintiff had, the contractual obligations between parties do not create a separate and distinct duty owed to plaintiff. Loweke v Ann Arbor Ceiling & Partition LLC, 489 Mich. 157, 159-160, 809 N.W.2d 553 (2011). Thus, plaintiff's claim against Teachout was properly dismissed under MCR 2.116(C)(8).

3.   Tripp relied on Lugo v Ameritech Corp, Inc, 464 Mich. 512, 629 N.W.2d 384 (2001) and applied the open and obvious doctrine after determining that a dog can be a dangerous condition on the land. The open and obvious doctrine was overturned by Kandil-Elsayed v F & E Oil, Inc, 512 Mich. 95, 133, 1 N.W.3d 44 (2023), but Kandil-Elsayed did not otherwise disturb the elements of a premises liability claim.

4.   In so concluding, we are not expanding our common law, we are applying it.

1.   Although this Court is not bound by decisions from “courts of other states, we may consider them persuasive.” Bank of America, NA v Fidelity Nat'l Title Ins Co, 316 Mich App 480, 496 n 2, 892 N.W.2d 467 (2016). In the cited case, the Supreme Court of Texas described, but neither embraced nor rejected, the exception to the doctrine of ferae naturae. See Hillis, 602 S.W.3d at 442 n 10.

2.   This approach is consistent with what I learned about risk allocation at the Gies (pronounced, of course, geese) School of Business at the University of Illinois. Indeed, under economic analysis, assigning legal responsibility to the party best positioned to prevent the harm makes good sense.

1.   Massengile and Andrews used the term mansuetae naturae, which is the equivalent of domitae naturae.

2.   Leiendecker does not argue on appeal that Ascension owed or breached a duty to warn; he instead argues that Ascension “breached [its] legal duties to Leiendecker by failing to remove the goose from the property.”

3.   It is undisputed that Leiendecker was an invitee at the time of the incident.

4.   Michigan has also enacted a statute imposing strict liability in certain circumstances. MCL 287.351(1).

5.   In Glave the defendants had sprayed city buildings in an effort to encourage the departure of pigeons, which the plaintiff alleged caused the pigeons to flock to her neighborhood and home. The Court distinguished those facts from those in Andrews v Andrews, 242 N.C. 382, 88 S.E.2d 88 (1955), in which the defendant had “deliberately attracted large numbers of wild geese to a large artificial pond constructed within four hundred feet of plaintiffs’ lands, and over a period of years the pond became a base for the ever-widening and increasingly expensive predations of the geese on plaintiffs’ crops.” Glave, 159 Mich App at 540-541, 407 N.W.2d 36. In any event, even if actions that attract wild animals could properly fall within an exception to the doctrine of ferae naturae, Leiendecker does not allege in this case that Ascension took any action to induce, entice, or otherwise attract the goose onto its property.

6.   Lugo was overruled by our Supreme Court in Kandil-Elsayed v F & E Oil Inc, 512 Mich. 95, 1 N.W.3d 44 (2023).

7.   The majority inaccurately characterizes Tripp as holding that an “animal” can be a dangerous condition of the land for purposes of a premises liability claim. However, Tripp actually held that a “dog” can be a dangerous condition of the land. Tripp, 346 Mich App at 267-269, 12 N.W.3d 45. And while the Court in Tripp may not have highlighted the domesticated nature of the dog, it would have had no reason to do so, or to consider or distinguish the ferae naturae doctrine, because the entire context of the matter before it was that of a domesticated dog to which the doctrine of domitae naturae applied. The majority's characterization of Tripp (a) is inaccurate, (b) flaunts our holding Glave, (c) takes Tripp out of its proper context, and (d) mechanically applies its out-of-context reading of Tripp to alter our common law of ferae naturae.

8.   The majority characterizes Glave as applying only to a claim for “negligence,” not premises liability. However, premises liability is a form of a negligence claim. Kandil-Elsayed v F & E Oil Inc, 512 Mich. 95, 1 N.W.3d 44 (2023) (“All negligence actions, including those based on premises liability, require a plaintiff to prove four essential elements: duty, breach, causation, and harm.). Moreover, the plaintiff in Glave brought claims for both nuisance and negligence, and the circumstances of Glave obviously could not have supported a premises liability claim because the defendants were not in “possession and control over the land,” Scola v JP Morgan Chase Bank, Nat'l Assoc, 506 Mich. 924, 949 N.W.2d 147 (2020), on which the alleged injury (pigeons on plaintiff's property) was incurred. But the holding in Glave broadly precluded liability for any form of negligence claim with regard to a wild animal, under the doctrine of ferae naturae. Again, Glave held that a person may be held liable “[b]y asserting dominion over [a wild animal] and keeping it,” but that the person “could not be liable without exercising dominion, control or possession over [the animal].” Glave, 159 Mich App at 540-541, 407 N.W.2d 36. The Court concluded, “Defendants never asserted dominion over the birds or reduced them to possession; hence the birds remained free, and the defendants were not responsible for their migrations. To hold otherwise would put the imagination to ludicrous shifts.” Id. at 541, 407 N.W.2d 36 (citation omitted). Like the plaintiff in Glave, Leiendecker “did not allege such dominion, control or possession” and accordingly “failed to state a claim upon which relief could be granted.” Id.

9.   “Unpublished opinions may be considered persuasive, even if they are not binding.” Elizabeth Trace Condominium Ass'n v American Global Enterprises, Inc, 340 Mich App 435, 444, 986 N.W.2d 412 (2022).

10.   As the majority notes, the trial court granted summary disposition to Ascension under MCR 2.116(C)(8) (failure to state a claim on which relief could be granted). But this does not mean, as the majority describes, that we are “limited to reviewing the facts alleged in plaintiff's second amended complaint.” Certainly, we must accept those factual allegations as true for purposes of a (C)(8) analysis. But we have a broader duty than just that; we have a duty to assess the “legal sufficiency of a claim based on the factual allegations.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159-160, 934 N.W.2d 665 (2019). Simply put, Leiendecker's premises liability claim fails because, accepting his factual allegations as true, his claim is legally insufficient.

11.   The majority properly does not rely on other out-of-state cases cited by Leiendecker. Indeed, one need only take a gander at those cases to discern that they also are not supportive of the majority's conclusion in this case.

12.   Although this Court may look to the law of other jurisdictions for guidance, we generally do so when “there is a lack of controlling Michigan precedent.” Butler v Simmons-Butler, 308 Mich App 195, 214 n 4, 863 N.W.2d 677 (2014).

13.   Even if the common law of Michigan arguably should be altered to create an exception for such circumstances, Leiendecker has not alleged that any such circumstances exist in this case. Consequently, allowing Leiendecker's premises liability claim to survive a motion for summary disposition under MCR 2.116(C)(8), as the majority now does, simply sends the parties and the judicial system on a wild goose chase.

14.   The case cited by my concurring colleague, Hillis v McCall, 602 S.W.3d 436, 442 n 10 (Texas Sup Ct, 2020), is no different. Indeed, Hillis reversed the Texas Court of Appeals’ reversal of the trial court's grant of summary disposition to the defendant property owner. And, like the court in Nicholson, it only recognized—under the common law of Texas—a limited exception to the doctrine of ferae naturae “with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises, and cannot expect patrons to realize the danger or guard against it.” Hillis, 602 S.W.3d at 441 (citations omitted). But no such exception exists in the common law of Michigan and, in any event, it would not apply to the facts and circumstances of this case. The court in Hillis also did not, as is suggested, “describe” any broader exception to the doctrine of ferae naturae. To the contrary, it expressly declined to address whether any additional exception might exist. Id. at 442 n 10. The majority in this case, by contrast, creates out of whole cloth a vastly broader exception to the doctrine of ferae naturae than has ever been recognized in Michigan (or perhaps anywhere).

15.   Again, Leiendecker does not argue on appeal that Ascension owed or breached a duty to warn; he instead argues that Ascension “breached [its] legal duties to Leiendecker by failing to remove the goose from the property.”

Young, J.