Provocation in dog bite cases is always a very litigated topic. Judge Sawyer attempts to narrow the issues on provocation for future opinions:
JUDGE SAWYER, J. CONCURRING OPTION
I concur in the result reached by the majority, but write separately because I do not agree with its analysis. I believe that we must reach the question whether the provocation under the dog-bite statute, MCL 287.351; MSA 12.544, must be intentional or unintentional. In my view, there are three potential variations: (1) the victim intentionally provoked the dog (e.g., he kicked the dog), (2) the victim intentionally did an act that unintentionally provoked the dog (e.g., he intentionally petted the dog, not believing that the dog would take exception to being petted), and (3) the victim committed an unintentional act that provoked the dog (e.g., the victim accidentally tripped and fell, landing on the dog). All would agree that the first category comes within the statute. We need not address the second category because this case falls within the third category. I do not believe that the -1- Legislature intended the third category (unintentional acts) to constitute provocation. Therefore, I agree with the majority that the decision of the trial court should be reversed. /s/ David H. Sawyer
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