Abigail Goldman-Nagel v. Bradley Werntz
CourtCourt of Appeals of Wisconsin
Date FiledOctober 22, 2026
Docket2025AP000137
StatusUnpublished
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Full Opinion
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 22, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2025AP137 Cir. Ct. No. 2022CV1603
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
ABIGAIL GOLDMAN-NAGEL,
PLAINTIFF-APPELLANT,
GROUP HEALTH COOPERATIVE OF SOUTH CENTRAL WISCONSIN,
SUBROGATED-PLAINTIFF,
V.
BRADLEY WERNTZ AND VERA NAPUTI,
DEFENDANTS-THIRD-PARTY PLAINTIFFS-RESPONDENTS,
4TH WARD LOFT CONDOMINIUM ASSOCIATION, INC.,
DEFENDANT-RESPONDENT,
V.
ROBERT F. NAGEL AND MOLLY LAWSON,
THIRD-PARTY DEFENDANTS-RESPONDENTS.
No. 2025AP137
APPEAL from an order of the circuit court for Dane County:
SUSAN M. CRAWFORD, Judge. Affirmed.
Before Graham, P.J., Blanchard, and Kloppenburg, JJ.
¶1 BLANCHARD, J. Abigail Goldman-Nagel appeals an order of the
circuit court granting summary judgment dismissing her claim against the 4th
Ward Condominium Association (the Association) for her damages resulting from
a dog bite that occurred in a hallway of one of the Association’s buildings. There
is no dispute that the dog that bit Goldman-Nagel was owned by defendants
Bradley Werntz and Vera Naputi, and that Werntz and Naputi owned a unit in the
building where the bite occurred. The court granted summary judgment in favor
of the Association on the ground that there is no genuine issue of material fact that
the Association could not be liable for the damages here under case law governing
statutory and common law negligence claims for damages resulting from dog
bites.
¶2 Regarding statutory liability, Goldman-Nagel argues that there is a
genuine issue of fact as to whether the Association was either a “harborer” or a
“keeper” of the dog that injured her, as those terms have been defined in the case
law. Under either status, the Association would be strictly liable for her injuries
under WIS. STAT. § 174.02 (2023-24).1 We conclude that the only reasonable
inference from the summary judgment materials is that the Association did not
harbor or keep the dog.
1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
No. 2025AP137
¶3 Regarding common law liability, Goldman-Nagel argues that case
law which precludes negligence-based liability for those who own property where
a dog is kept, based solely on that property ownership, does not apply to the
Association. According to Goldman-Nagel, that liability-precluding authority
applies only to landlords and not to condominium associations. We conclude that
the authority precluding liability for property owners based solely on property
ownership applies to the Association here, barring Goldman-Nagel’s claim against
the Association. Under this case law, an owner of property can be liable for
common law claims for negligence associated with injuries caused by a dog only
if the property owner was an owner or a keeper of the dog. Again, the only
reasonable inference from the summary judgment materials is that the Association
was not an owner or a keeper of the dog, and therefore Goldman-Nagel cannot
prevail on the negligence claim.
¶4 Accordingly, we affirm the circuit court’s order dismissing the
complaint.
BACKGROUND
¶5 Goldman-Nagel commenced this action in June 2022. The
complaint alleges the following in support of Goldman-Nagel’s claim that the
Association was negligent in failing to prevent the dog bite at issue.
¶6 Goldman-Nagel was in a hallway of an upper floor of a building in
Madison that was owned in part by the Association (“the condo building”).2 She
2
We note for context that the Association owned, in part, several other buildings as part
of the same condominium established through the Association’s declaration, but the additional
buildings play no role in our analysis. See WIS. STAT. § 703.02(4) (“‘Condominium’ means
property subject to a condominium declaration established under this chapter.”).
(continued)
3
No. 2025AP137
was accompanied by her father, Nagel, and Nagel had with him a dog owned by
his partner, Molly Lawson. Goldman-Nagel and Nagel were waiting for an
elevator to take them and Lawson’s dog down to the first floor of the condo
building. When the elevator arrived, Brad Werntz was in the elevator, and he had
with him another dog, Pako, which belonged to Werntz and Vera Naputi. The
elevator doors opened, and Pako bit one of Goldman-Nagel’s hands.
¶7 According to Goldman-Nagel’s complaint, the Association was
negligent by failing to take actions that would have prevented Pako from biting
Goldman-Nagel. As part of the negligence claim, Goldman-Nagel alleges that
members of an Association board responsible for creating and enforcing its rules
and regulations were aware before this incident that Pako was a dangerous dog
and yet the Association failed to take steps that could have prevented this incident.
¶8 The Association moved for summary judgment dismissing
Goldman-Nagel’s claim against it. The Association argued that, under pertinent
case law, it could not be liable under common law negligence principles for the
injuries caused by Pako. Although the complaint did not explicitly reference
liability under WIS. STAT. § 174.02, the Association further argued that it could
not be liable for injuries caused by Pako under that statute. Goldman-Nagel
opposed summary judgment, arguing that the Association was liable as an
“owner” of Pako both under § 174.02 and also under a common law theory of
negligence.
As we discuss in more detail below, we say that the condo building was “owned in part”
by the Association because each individual unit inside the building is the exclusive property of
the unit’s owner, as distinct from “common elements” that are owned by all the unit owners
collectively through undivided property interests. See WIS. STAT. §§ 703.02(2) and (15), 703.05,
703.13(1), 703.16.
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No. 2025AP137
¶9 The circuit court granted the Association’s motion. The court
concluded that there is no evidence in the summary judgment materials that could
show or support a reasonable inference that, at the time of the bite, any unit owner
other than Werntz and Naputi, or any “agent or employee of the Association, was
exercising any custody or control over Pako.” Instead, the court ruled, Werntz and
Naputi exercised all of the custody and control over Pako that could support
statutory or common law liability.
¶10 Goldman-Nagel appeals.
DISCUSSION
¶11 As we have foreshadowed, Goldman-Nagel relies on two theories of
liability to argue that the circuit court should not have granted summary judgment
in favor of the Association. One theory is based on statutory liability for dog bite
damages under WIS. STAT. § 174.02. The other is based on common law liability
for dog bite damages due to negligence. We conclude that the summary judgment
materials do not give rise to reasonable inferences establishing that the
Association is liable under either theory.
¶12 Summary judgment may be granted only “if there are no genuine
issues of material fact, and the moving party … is entitled to judgment as a matter
of law.” AccuWeb, Inc. v. Foley & Lardner, 2008 WI 24, ¶16, 308 Wis. 2d 258,
746 N.W.2d 447 (citing WIS. STAT. § 802.08(2)). “Summary judgment materials,
including pleadings, depositions, answers to interrogatories, and admissions on file
are viewed in the light most favorable to the nonmoving party.” Id.; § 802.08(2).
That is, we draw “[a]ll reasonable inferences” in favor of the nonmoving party that
can be supported by the summary judgment materials. See Johnson v. Rogers
Mem’l Hosp., Inc., 2005 WI 114, ¶30, 283 Wis. 2d 384, 700 N.W.2d 27. We
5
No. 2025AP137
review the circuit court’s grant of summary judgment de novo. Steffes v. Fond du
Lac Reg’l Clinic, S.C., 2026 WI App 35, ¶8, 421 Wis. 2d 492, 37 N.W.3d 574.
¶13 The “[i]nterpretation and application of statutes and case law to a set
of facts”—here, the summary judgment materials viewed in the light most
favorable to Goldman-Nagel—are matters of law that we also decide de novo. See
Meyers v. Bayer AG, Bayer Corp., 2007 WI 99, ¶22, 303 Wis. 2d 295, 735
N.W.2d 448.
I. WISCONSIN STAT. § 174.02
¶14 Under WIS. STAT. § 174.02(1), “the owner of a dog is liable” for
either “the full amount of damages caused by the dog injuring … a person” or, in
certain circumstances, twice that amount. See § 174.02(1)(a)-(b). For purposes of
WIS. STAT. § 174.02, an “owner” “includes any person who owns, harbors[,] or
keeps a dog.” WIS. STAT. § 174.001(5). Thus, § 174.001 expands the definition
of ownership for purposes of statutory liability for dog bite harm beyond persons
who might be described as “legal owner[s]” of a dog to include any person who
was a harborer or a keeper of the dog at the time of the bite. See Pawlowski v.
American Fam. Mut. Ins. Co., 2009 WI 105, ¶19, 322 Wis. 2d 21, 777 N.W.2d
67.
¶15 The meaning of “owns”—that is, who was the “legal owner” of Pako
at relevant times—is settled here. See id. Goldman-Nagel does not argue that a
factfinder could reasonably find, based on the summary judgment materials, that
the Association was a legal owner of Pako. It is undisputed that Werntz and
Naputi were the only ones who “own[ed]” Pako in this sense.
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No. 2025AP137
¶16 Turning to the status of harboring or keeping of a dog under WIS.
STAT. §§ 174.001 and 174.02, these terms are not given statutory definitions, and
their meanings are instead found in case law. See Augsburger v. Homestead Mut.
Ins. Co., 2014 WI 133, ¶¶20-21, 359 Wis. 2d 385, 856 N.W.2d 874. Although
“some dictionary definitions” of harboring and keeping “are similar and … the
words seem to have overlapping meanings,” courts have given them somewhat
distinct meanings in this context, consistent with the rule of statutory construction
under which courts strive “to give each statutory word independent meaning.”
Pawloski, 322 Wis. 2d 21, ¶¶21-22. Thus, while some activities that would
contribute to a determination of harboring would also support a determination of
keeping and vice versa, we address each as a separate status. That is, each of the
two statuses that could qualify a person as an “owner” under § 174.02 is
determined independently, even if some or all of the same facts will inform
whether a person had either status. See Pawlowski, 322 Wis. 2d 21, ¶¶21, 23, 30;
Augsburger, 359 Wis. 2d 385, ¶¶38-39.
¶17 “Whether a person is one who ‘harbors’ or ‘keeps’ a dog is
ordinarily a factual question for the fact finder and ‘depends upon the peculiar
facts and circumstances of each individual case.’” Pawlowski, 322 Wis. 2d 21,
¶20 (quoted source omitted).
A. Whether the Association was a Harborer
¶18 “Harboring” a dog means “‘sheltering or giving refuge to a dog.’”
Augsburger, 359 Wis. 2d 385, ¶21 (quoted source omitted). To qualify as
harboring, the plaintiff must show “‘something more than [the provision of] a
meal of mercy to a stray dog or the casual presence of a dog on someone’s
premises.’” Id. (quoted source omitted). In contrast to “keeping,” harboring does
7
No. 2025AP137
not turn on the exercise of control over the dog—that is, harboring does not
depend on activity that shows signs of having a “‘proprietary aspect,’” or degree
of ownership, over the dog. Id., ¶¶21, 39 (quoted source omitted).
¶19 In Augsburger, our supreme court discussed how these standards for
harboring are met, based on the control that a person has over property where a
dog is kept. See id., ¶¶22-42. In that discussion, the supreme court frequently
spoke in terms of when a “landowner” is considered a harborer, concluding that
“mere ownership of the property on which a dog resides is insufficient to establish
that an individual is a harborer.” Id., ¶42. The focus of the harboring analysis is
on “the amount of control” that the possible harborer “exerts over the premises on
which the dog is kept.” Id., ¶¶30, 39. Determining whether a person exercised
control over the premises does not turn on whether there is an “official
relationship”—such as the existence of a landlord-tenant relationship—between
the potential harborer and someone who legally owns, keeps, or cares for the dog
on the property. See id., ¶30. Thus, in Augsburger the court did not need to
resolve the parties’ dispute over whether the property owner had a tenancy-at-will
relationship with the family that kept the dog at issue. Id. Instead, the court
considered facts reflecting the degree of control that the property owner had over
the property. Id., ¶¶43-47.
¶20 Further, our supreme court explained that the control over the
premises which matters in the harboring analysis is not established by the person’s
ability to set rules governing the use of the property, including rules that might
have limited the ability of occupants of the property to possess dogs there. See id.,
¶29 (citing Malone v. Fons, 217 Wis. 2d 746, 766, 580 N.W.2d 697 (Ct. App.
1998)). Instead, the kind of premises control that counts is the control which was
exercised by a person who was part of the same household as the dog. See id.,
8
No. 2025AP137
¶¶22-29, 31-34. For these reasons, we consider the analysis from Augsburger to
be instructive here, even though the Association’s role as a landowner did not
extend to Werntz and Naputi’s individual condo unit. See WIS. STAT. § 703.05
(owner of an individual condo unit is “entitled to exclusive ownership and
possession of his or her unit”).
¶21 As part of its harboring analysis, our supreme court cited the
following Restatement principle as persuasive in determining the level of control
over the premises where a dog is kept that is needed to qualify as harboring the
dog for purposes of WIS. STAT. § 174.001(5). “‘[T]he possession of the land on
which the animal is kept, even when coupled with permission given to the third
person [occupying the land] to keep it, is not enough to make the possessor of the
land liable as a harborer of the animal.” Augsburger, 359 Wis. 2d 385, ¶31
(quoting RESTATEMENT (SECOND) OF TORTS § 514 cmt. a (1977)). Instead, “an
individual ‘harbors an animal by making it part of his [or her] household,” which
the individual “‘may do by permitting a member of [the] household ... to keep the
animal … on the premises that are occupied as the home.” Id., ¶32 (quoting
RESTATEMENT (SECOND) OF TORTS § 514 cmt. a) (brackets from Augsburger
omitted).
¶22 We observe that, under the harboring analysis, the location that
matters most is not where the dog bite occurred, but rather where one or more
people sheltered the dog. It is true that judicial opinions addressing when a
landowner harbored a dog often involve, as one would expect, biting incidents that
occurred on or near the place where the dog was generally kept, which also
happened to be a place that was owned or rented by someone other than the dog’s
undisputed legal owner or keeper. See, e.g., Augsburger, 359 Wis. 2d 385, ¶¶5-9;
Pawlowski, 322 Wis. 2d 21, ¶¶9-11. But under the logic of those cases, a
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No. 2025AP137
landowner who is determined to have been a harborer of a dog is liable under WIS.
STAT. § 174.02 even for injuries that the dog causes at a location away from the
dog’s shared living area, and the bite location is treated as an incidental fact. See
Pawloski, 322 Wis. 2d 21, ¶¶40-45 (discussing Koetting v. Conroy, 223 Wis. 550,
551, 270 N.W. 625 (1936) (father who permitted adult daughter and her dog to
live in father’s house liable for damages caused by the dog at a park, when the dog
was accompanied only by the daughter)); Augsburger, 359 Wis. 2d 385, ¶¶27-28
(discussing Koetting as an opinion addressing the meaning of “harboring,” even
though Koetting used the term interchangeably with “keeping”).
¶23 Applying these standards to the summary judgment materials here,
we conclude that there is no genuine issue of fact that the Association did not
harbor Pako. At all relevant times, the Association was a corporate entity
comprised of all of its “unit owners acting as a group.” See WIS. STAT.
§ 703.02(1m).3 There is no evidence that the unit owners acting as a group
provided shelter, meals, or protection to Pako. The only evidence is that all of
these were provided only by Werntz and Naputi, and there is no suggestion that
any of this was done outside of the condo unit that was owned by Werntz and
Naputi, and not by the Association. See WIS. STAT. § 703.05 (“A [condominium]
unit owner is entitled to the exclusive ownership and possession of his or her
unit.”). Further, there was no evidence that Pako was a part of any household that
could be defined as a group consisting of the unit owners acting collectively.
3
The declaration for the condominium at issue here specifies that the declaration, and
the Association generally, were governed by WIS. STAT. ch. 703, the Condominium Ownership
Act. Consistent with the Act’s definition of “association,” the declaration states that the
Association is a non-stock corporation in which all unit owners in the condominium “shall be
members.”
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No. 2025AP137
Instead, in all relevant respects, Pako was exclusively treated as being part of the
Werntz and Naputi household.
¶24 Goldman-Nagel appears to argue that the level of control that the
Association exercised over relevant aspects of the condo building, through its
rules, supports a finding that the Association harbored Pako. See WIS. STAT.
§ 703.10(1) (“[e]very unit owner shall comply strictly with the bylaws [for the
administration of the condominium] and with the rules adopted under the
bylaws”).4 She specifically emphasizes the rules in the Association’s governing
documents that address the presence of pets in areas controlled by individual unit
owners and common areas, such as the hallway where Pako bit Goldman-Nagel.
One pertinent example was a rule that pets must “be carried or kept on a leash at
all times” when the pet was in certain common areas, including the hallway here,
for the purpose of leaving or reentering the building. Another rule provided that
pets should not be allowed “to create a nuisance or cause an unreasonable
disturbance” in any common or individually owned area. Goldman-Nagel
apparently means to argue that, because Werntz and Naputi as unit owners were,
in the words of the Association’s declaration, “strictly subject” to such rules, this
represented sufficient control by the Association over premises where Pako was
present to allow a factfinder to find that the Association harbored Pako.
4
Goldman-Nagel’s argument on this point is somewhat difficult to follow in part
because she makes a brief reference to whether an individual is a keeper of a dog under WIS.
STAT. § 174.001(5), but her associated argument addresses points that appear most relevant to the
topic of control of property. See Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶39,
359 Wis. 2d 385, 856 N.W.2d 874 (“The control considered in the analysis of ‘keeper’ is control
over the dog, not control over the property.”). In Goldman-Nagel’s favor, we assume that she
intends to argue that the Association’s regulations related to pets when they are in common areas
or in individually owned areas supports both a finding that the Association harbored Pako and a
finding that it kept Pako.
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No. 2025AP137
¶25 Goldman-Nagel’s harboring argument fails for at least the following
reason. The type of control that the Association exercised, through its rules, over
the property where Pako lived is analogous to the “limited control” of a landlord
over rented premises when the landlord was also not a member of the household
where the dog lived. See Pawloski, 322 Wis. 2d 21, ¶52; WIS. STAT. § 704.05(2)
(discussing right of tenant not in default to exclusive possession of rented premises
unless agreed to by landlord and tenant in signed writing); Apple Valley Gardens
Ass’n, Inc. v. MacHutta, 2009 WI 28, ¶¶3, 30-31, 316 Wis. 2d 85, 763 N.W.2d
126 (condominium by-laws can restrict use of individual units, but only when by-
laws are duly enacted, and consistent with the condominium’s declaration and
applicable law). Put in more general terms, a person who merely permitted the
presence of a dog on property that the person owned—regardless of whether the
presence of the dog is consistent with, or contrary to, rules established by that
person for the use of the property by others—did not necessarily exercise the type
of control that supports a finding that the person harbored the dog. See
Augsburger, 359 Wis. 2d 385, ¶¶24, 29, 33; Malone, 217 Wis. 2d at 766 & n.7.
Instead, the nature of the control that a person exercises over the premises where a
dog is given food and shelter must be the type of control that involves the person
being a member of the household where the feeding and sheltering occur. See
Augsburger, 359 Wis. 2d 385, ¶¶21, 31.
¶26 Here, the Association, through its rules, gave Werntz and Naputi
permission to shelter and care for a dog in their condo unit, with various
requirements related to keeping a dog in the building. But what matters is that it
was Werntz and Naputi alone who exercised that right and who were responsible
for following the Association rules.
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No. 2025AP137
¶27 It is true that, when compared to the spaces within individual condo
units, the Association’s level of relevant control under its declaration and bylaws
was undoubtedly greater in some ways in common condo areas, such as the
hallways between individually owned units. These common spaces were not the
exclusive property of individual unit owners. Instead, consistent with the default
arrangement established by statute, see WIS. STAT. § 703.13(1), the declaration
provides that the unit owners who made up the Association held undivided
percentage interests in the common elements of the condominium. Yet, there is no
evidence in this case that Pako was cared for by anyone in common areas in ways
that could support a finding of harboring. And, to repeat, the fact that the bite
occurred in a common hallway, by itself, has little bearing on who can be
considered a harborer of Pako under pertinent legal standards.
¶28 Goldman-Nagel notes several ways in which the Association’s
relationship with its individual members might have differed from a landlord’s
relationship with tenants. But none of her points could support a determination of
harboring. She observes that the unit owners who formed the Association all lived
in the condominium’s buildings. This included the unit owners who were, at
pertinent times, members of the Association’s board, the body charged by the
Association’s governing documents with creating and enforcing the Association’s
rules. Under Goldman-Nagel’s framing of the issue, this means that the
Association and its board had “daily contact” with the condo building, which she
contrasts with what she describes as the lack of “daily contact” that “a typical
landlord” has with, for example, a multi-unit apartment building. But, Goldman-
Nagel does not develop an argument from this daily-contact concept, supported by
evidence that is related in any way to the Association or Pako, that could support a
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No. 2025AP137
reasonable inference that the Association or any agent of the Association
participated in any activities that could support a finding of harboring.
¶29 In a similar vein, Goldman-Nagel contends that another difference
between the condominium and landlord-tenant contexts that matters here has to do
with the ability of tenants to pursue relief for constructive eviction or untenantable
conditions, such as might arise when a landlord fails to protect tenants from
dangerous animals in common spaces around the rented premises. See WIS. STAT.
§ 704.07(4) (discussing the ability of a tenant to seek abated rent when conditions
in the rented premises are subject to certain conditions that “materially affect[] …
the safety of the tenant”). Goldman-Nagel argues that condominium unit owners
are relatively less able to surrender their interest in a condominium (which
requires selling their unit and shared interests) when an association fails to
adequately protect common spaces from dangerous animals, as she alleges the
Association failed to do here. Assuming without deciding that condominium unit
owners indeed have fewer remedies along these lines, Goldman-Nagel does not
support the proposition that this in itself affects how the principles in cases such as
Augsburger apply here. Rather, her argument suggests a reason that the
legislature could alter the statutory definition of “owner” under WIS. STAT.
§ 174.001 in the specific context of condominiums to better protect the specific
vulnerabilities of condominium unit owners.
¶30 Goldman-Nagel also appears to argue that there is a reasonable
inference that the Association harbored Pako based on prior knowledge of Pako’s
dangerousness by Association members. Specifically, this argument involves
evidence that could support reasonable inferences that members of the
Association’s board knew, before Pako bit Goldman-Nagel, that Pako was a
dangerous dog who lived in the condo building, and that members of the board
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No. 2025AP137
failed to take steps that would have prevented the bite here, such as by directing
that Pako be muzzled while in common areas. Goldman-Nagel’s argument is that,
because a factfinder could find that the Association, acting through its board,
could have taken steps that would have prevented the bite, that same factfinder
could find that the Association in this sense harbored Pako.
¶31 This foreseeability-based argument fails because foreseeability is not
a factor in determining whether there is liability under WIS. STAT. § 174.02.
Section 174.02 is a form “strict liability” for legal owners, harborers, and keepers
of dogs. See Augsburger, 359 Wis. 2d 385, ¶40. A plaintiff seeking to recover
under § 174.02 needs to prove only causation and damages, and does not need to
show “‘specific acts of negligence.’” See Fandrey ex rel. Connell v. American
Fam. Mut. Ins. Co., 2004 WI 62, ¶9, 272 Wis. 2d 46, 680 N.W.2d 345 (quoted
source omitted). Thus, a plaintiff under the statute need not prove the
foreseeability element of a typical common law negligence claim. See Haase v.
Badger Mining Corp., 2004 WI 97, ¶¶39, 41, 274 Wis. 2d 143, 682 N.W.2d 389
(distinguishing strict liability claims from negligence claims based on
foreseeability being an element of negligence claims only). Consistent with this,
foreseeability is not a consideration relevant to the determination of whether a
landowner is a harborer of a dog. See Augsburger, 359 Wis. 2d 385, ¶¶21-37.5
5
We note that, while foreseeability is not part of the liability considerations, in those
cases in which liability is shown, damages and penalties are to be increased “if the owner was
notified or knew that the dog had previously” caused the types of harms specified in the statute.
See WIS. STAT. § 174.02(1)(b), (2)(b).
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No. 2025AP137
B. Whether the Association was a Keeper
¶32 “Keeping” a dog means exercising “‘care, custody or control over
the dog.’” Augsburger, 359 Wis. 2d 385, ¶21 (quoted source omitted). This is
“synonymous” with exercising “‘dominion over’” the dog. Smaxwell v. Bayard,
2004 WI 101, ¶46 & n.11, 274 Wis. 2d 278, 682 N.W.2d 923. Once an individual
“ceases to exercise dominion over [a] dog, that is, once he [or she] ceases to have
custody and control of the dog, the individual is no longer a ‘keeper.’” Id.
¶33 “The control considered in the analysis of ‘keeper’ is control over
the dog, not control over the property” where the dog was kept. Augsburger, 359
Wis. 2d 385, ¶39. When a landlord of a residential unit or other place where a dog
was sheltered had “the ability … to enforce a lease provision” that excluded all
dogs or that excluded only “vicious dogs,” this would be “a type of control that
[the] landlord exercise[d] over the premises, not over [the] tenant’s dog on the
premises.” Ladewig ex rel. Grischke v. Tremmel, 2011 WI App 111, ¶29, 336
Wis. 2d 216, 802 N.W.2d 511 (emphasis omitted). Thus, including such an
enforceable provision in a lease does not make the landlord a keeper of the dog.
See id.
¶34 Applying these principles from case law here, we conclude that the
Association was not a keeper of Pako. The undisputed evidence is that the only
person who, at the time of the bite, actively exercised control over Pako, as
opposed to over property, was Werntz. The only other person who could be said
to have control or custody of Pako was a member of the Pako’s household, Naputi.
It was Naputi who had a general level of control and custody over Pako as the
dog’s legal owner, though she was not present at the time of the bite. As noted
above, the Association had multiple rules regarding the keeping of pets in the
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No. 2025AP137
condo building. But under the logic of cases such as Ladewig, these rules were
part of the control exercised over the premises, not over Pako.
¶35 Goldman-Nagel emphasizes that, unlike in cases such as Ladewig,
which involved landlord-tenant relationships, here the landowner at issue was a
condominium association. But she does not identify, and we do not discern, a
meaningful difference between, on the one hand, lease provisions governing the
ability of tenants to keep dogs on leased or shared rental premises—which
generally do not support a finding of keeping under Ladewig—and, on the other
hand, the condominium rules that were in place here governing the same subject
matters for unit owners. In both instances, for purposes of binding case law, the
control exercised was over the premises, not over the dog, which is the key
consideration in determining whether someone kept the dog under WIS. STAT.
§ 174.001(5).
¶36 Further, as with the harboring issue, Goldman-Nagel’s emphasis on
evidence that could support a reasonable inference that the Association foresaw, or
should have foreseen, that Pako might injure someone does not support a
determination that the Association was Pako’s keeper. Case law addressing the
meaning of keeper in this context establishes that keeper status does not depend on
the foreseeability of a dog causing harm. See Pawlowski, 322 Wis. 2d 21, ¶56 &
n.41 (noting that, in Smaxwell, the court precluded liability when a landowner
merely allows “known dangerous dogs to run at large on the property,” based on
the principle that only landowners who were also owners or keepers of a dog
could be liable for harms the dog causes under common law negligence claims);
Smaxwell, 274 Wis. 2d 278, ¶46 & n.11 (defining the keeper of a dog in
significant part based on exercising control and custody over the dog, without any
reference to foreseeability of harm).
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¶37 Summing up on the statutory liability issues, Goldman-Nagel does
not identify evidence in the summary judgment materials giving rise to the
reasonable inference that the Association either harbored or kept Pako. This
leaves no material dispute regarding whether the Association could be liable for
Pako biting Goldman-Nagel under WIS. STAT. § 174.02.
II. Common Law Negligence Claim for Dog Bite Damages
¶38 Given what we have stated to this point, our discussion regarding the
common law claim of negligence can be brief. This is because our supreme court
has established that there can be no liability for “landowners and landlords,” “in
[their] capacity as a landowner or landlord[,] unless [they are] also the owner or
keeper of the dog causing injury.” Smaxwell, 274 Wis. 2d 278, ¶54 & n.18. This
limit on liability for negligence is based on “public policy factors” and not on a
lack of a duty to care owed by landowners and landlords. See id., ¶¶45, 54. This
is because, under Wisconsin law, landowners and landlords, in common with all
other persons, have a duty of reasonable care to refrain from acts or omissions that
unreasonably threaten the safety of others. See id., ¶¶32-33, 35. Put differently, as
a public policy limitation to negligence liability, the rule from Smaxwell applies
even when a plaintiff can meet all of the ordinary elements of negligence. See id.,
¶39. Thus, this issue, like the statutory issue, does not depend on whether there is
a genuine dispute regarding foreseeability.
¶39 Goldman-Nagel argues that the limitation on common law liability
described in Smaxwell, which addressed a case involving a landlord and tenant,
would need to be extended to limit the liability of condominium associations, and
she contends that the rule should not be so extended. To the extent that Goldman-
Nagel argues that that Smaxwell does not apply to a condominium association in
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No. 2025AP137
its capacity as a representative of all of the unit owners and of their collective
ownership of common elements, she construes Smaxwell too narrowly. Our
supreme court framed the limitation on negligence liability in broad terms.
Specifically, as the Association notes, Smaxwell applies the limitation on liability
to all “landowners” in their capacity as landowners. Smaxwell, 274 Wis. 2d 278,
¶54 & n.18.
¶40 It is not clear if Goldman-Nagel intends to argue instead that
Smaxwell does not apply here because the Association was not the owner of
Werntz and Naputi’s unit. See WIS. STAT. § 703.05 (“A unit owner is entitled to
the exclusive ownership and possession of his or her unit.”). As noted above, she
identifies various pet-related rules in the Association’s governing documents. She
also emphasizes that the declaration granted the Association’s board the power to
create additional rules, ones that she argues could have been created before the
bite here to prevent it. For example, the declaration gave the board “sole
discretion” to remove “an otherwise permitted pet” if the Board determined that
the pet “becomes a nuisance to other” unit owners. This arguably involved a
power of the board to regulate matters within individual units, as opposed to
matters occurring in common areas.
¶41 But if Goldman-Nagel does intend such an argument, she does not
develop it. Her argument for negligence liability based on the Association’s
failure to take preventative steps fails to explain how a finder of fact could
reasonably treat the Association here differently than the landowners and landlords
who were immunized under the reasoning in Smaxwell. As noted above, she
argues that unit owners have less flexibility than tenants in leaving a dangerous
situation allegedly caused by a condominium association’s failure to adequately
address the presence of a dangerous dog in common spaces. But Goldman-Nagel
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No. 2025AP137
does not explain—in a way that is supported by reference to pertinent reasoning in
Smaxwell or other case law—how this potential difference makes the character of
a condominium association’s powers materially different from those exercised by
landlords and other kinds of landowners.
¶42 In sum on this issue, based on the allegations of fact in the summary
judgment materials, we conclude that Smaxwell applies to bar liability for the
Association. To repeat, under Smaxwell, the Association can be liable for the
damages caused by Pako only if the Association owned or kept Pako. See
Smaxwell, 274 Wis. 2d 278, ¶54. As discussed above, there is no genuine dispute
that the Association did not own or keep Pako. The result is that the Association
cannot be liable for common law damages caused by Pako, with the result that no
such claim survives summary judgment.6
CONCLUSION
¶43 For all of these reasons, the order of the circuit court granting
summary judgment is affirmed.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
6
Because we conclude that Smaxwell controls here, we do not reach Goldman-Nagel’s
argument that this court should decide whether there should be a public policy-based exception to
common law dog bite liability for condominium