Alex Cooper, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0538

Alex Cooper,
Appellant,

vs.

Christopher Beaver,
Respondent.

Filed October 22, 2018
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CV-16-11193

Jeffrey M. Montpetit, Marcia K. Miller, Sieben Carey, P.A., Minneapolis, Minnesota (for
appellant)

Scott A. Brehm, Law Offices of Kelly R. Rodieck & Associates, St. Paul, Minnesota (for
respondent)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant claims that the district court erred by denying his motion for judgment as
a matter of law ( JMOL), arguing that respondent is liable under the dog -owner liability

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statute, Minn. Stat. § 347.22 (2016), because appellant was injured when he fell off his
bicycle after being frightened by respondent’s dogs. We affirm.
FACTS
Respondent Christopher Beaver and Lester Michaels are neighbors. Behind their
homes is a walking and bike path. B ehind Michaels’s home, the path is a very steep hill
that causes some bicyclists to walk their bikes up the hill, and children riding down the hill
to “squeal[] on the brakes because they are scared to go down [the hill].” Beaver’s home
is at a point where the hill comes down at a steep angle and gradua tes to a more flat area.
The path curves around Beaver’s property. There is a curb along the path that ends at
Michaels’s property. The homes are on one side of the path and there is a “pretty shaded”
wooded area on the other side of the path.
When Beaver and his family moved into their home, they had an invisible fence
installed for their dogs. The Beavers had a standard fence at their previous home, but
association bylaws prevented them from installing a similar fence at their new home. It is
typical of Beaver’s dogs to bark and run toward someone on the path. But the dogs wear
collars that emit an audible signal if they approach the fence line. The dogs are restricted
from going within approximately 27 feet of the path. Beaver never received a complaint
about the dogs’ interactions with people on the path, and the dogs never attacked or injured
anyone. In June 2015, the fence was functioning properly when Beaver had two British
Labrador retrievers.

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On June 2, 2015, appellant Alex Cooper fell off his bicycle on the path. Cooper
sued Beaver, alleging that he fell off his bicy cle because Beaver’s dogs “ran out barking
and appearing to be in attack mode.”
At a jury trial, Cooper testified that he was on a mountain bike wearing sunglasses,
a helmet, and ear buds listening to “light background music.” The bike has “cage [s]”
clipped to the pedals to strap Cooper’s feet and prevent them from sliding. Cooper testified
that a month prior he had trouble with the bike when the chain got jammed, causing him to
stop “quickly,” go “over to [his] left,” and receive “a gash on [his] chin.”
Cooper testified that around 8:00 p.m. he was 19 miles int o his rid e in a “[v]ery
shaded” area descending the hill behind Michaels’s home . Cooper testified that when he
was behind Beaver’s home, he saw the dogs in the yard near the deck off Beaver’s home.
Cooper testified that when he and the dogs noticed each other, the dogs started “charging
toward” him, “barking and making a lot of noise.” Cooper testified that his first thought
was whether the dogs were going to reach him. He decided to “stop and turn around and
go the other way,” because he “could easily” and more quickly go home. Cooper testified
that he di d not know whether he braked or hit just the front brake and then “there’s a
memory gap .” He testified th at he next remembered waking up bleeding on the trail.
Cooper testified that he did not hit the curb because of “the curb ending prior to where [he]
actually landed.”
Michaels testified that he was sitting on h is porch when he became aware of a
bicyclist on the path, traveling approximately 10-15 miles an hour. Michaels testified that
he saw Beaver’s dogs running and heard them barking around the same time that he noticed

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the bicyclist. Michaels testified that he could not see the bicyclist make “any corrective
action . . . to try to avoid the dogs.” Michaels testified that he heard a “bike crash s ound”
and someone ask for help. Michaels found Cooper “pretty much on the curb,” “kind of
laying on top of the curb,” a nd helped him get “untangled from the bike.” Michaels
testified that the Beavers lived next door to him for 18 years and he had never seen one of
the dogs jump on anybody on the path.
The first responder’s notes indicated that: “[Cooper] advised that as he was riding
down a hill and a round a bend in the trail, he saw two dogs running ‘right at [him].’
[Cooper] hit his breaks to avoid ‘getting bit’ and lost control of his bike, fa lling forward
onto the trail.” It was also noted that Cooper “denie[d] loss of consciousness.”
The jury was asked to determine if the accident was “directly caused by the dogs.”
The district court defined “direct cause” as “a cause that had a substantial part in bringing
about the harm.” The jury determined that the accident was no t directly caused by the
dogs.
Cooper moved for JMOL. The district court denied Cooper’s motion because a
reasonable jury could conclude that Cooper failed to prove by a preponderance of the
evidence that his injuries we re a direct and immediate resul t of the dogs’ actions. The
district court stated that Cooper could not describe exactly what happened and concluded
that: “Ample alternative explanations for the accident were supported by the evidence,
including [Cooper] not paying attention and simply hitting the curb as he r ounded a sharp
downhill turn.” Judgment was entered and this appeal followed.

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D E C I S I O N
Cooper argues that the district court should have granted his motion for JMOL.
Appellate courts review a district court’s decision to deny a motion for JMOL de novo.
Christie v. Estate of Christie , 911 N. W.2d 833, 838 n.5 (Minn. 2018). When reviewing
the denial of a motion for JMOL, appellate courts construe the evidence “in the light most
favorable to the prevailing party and ask whether there i s [a] legally sufficient evidentiary
basis for a reasonable jury to find for the prevailing party.” Karl v. Uptown Drink, LLC ,
835 N.W.2d 14, 17 (Minn. 2013) (quotati on omitted). A jury’s verdict will be set aside
“only if it is perverse and palpably contrary to the evidence, or where the evidence is so
clear as to leave no room for differences among reasonable persons.” Moorhead Econ. Dev.
Auth. v. Anda, 789 N.W.2d 860, 888 (Minn. 2010) (quotation omitted).
Cooper argues that he was entitled to JMOL because Beaver is absolutel y liable
under Minn. Stat. § 347.22, which provides: “ If a dog, without provocation, attacks or
injures any person who is acting peaceably in any place where the person may lawfully be,
the owner of the dog is liable in damages to the person so attacked or injured to the full
amount of the injury sustained.” Cooper claims that he fell off his bicycle as a direct and
immediate result of becoming frightened by Beaver’s dogs an d trying to avoid an attack.
Cooper asserts that his case is similar to Morris v. Weatherly, in which this court
determined that two individuals could recover for injuries caused by dogs whose actions
directly and immediately caused the injuries. 488 N.W.2d 508, 510 (Minn. App. 1992),
review denied (Minn. Oct. 28, 1992).

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Morris involved consolidated appeals. In Morris’s case, he was bicycling when he
saw a dog approach from behind at “a dead run,” “running low to the ground” with “his
ears laid back.” Id. at 509. When Morris quickly dismounted his bike, one of his legs
collapsed, causing him to fall, twist his shoulder, and tear his rotator cuff. Id. The dog
stopped several feet short of Morris and walked away without coming into physical contact.
Id. The district court determined that the dog’s “attacking” pursuit proximately ca used
Morris’s injuries. Id. at 509-10.
In the second case, a mail carrier noticed a large dog barking at him from across the
street. Id. at 510. He then saw another dog running toward him “flying through the air.”
Id. A witness stated that the dog ran past the mail carrier, which caused him to spin around
and injure his back. Id. Based on the jury’s findings, the district court held the dog’s
owners strictly liable for the mail carrier’s injuries. Id.
The dog owners appealed. Id. This court determined that the statute applied in both
cases because the injuries were “the direct and immediate result of the dogs’ actions.” Id.
This court reasoned that, while no physical contact occurred, no “intermediate linkage”
connected the dogs’ actions to the injuries. Id. This court stated:
Both cases fall within the scope of section 347.22. The
actions of the dogs caused the injuries without any attenuated
chain of causation. The statutory language does not require
physical contact. We believe our conclusion is consistent with
the recognized purpose of the statute, which is to protect people
such as bicyclists and mail carriers who are subject to attacks
and immediate harm from dogs.

Id. at 511.

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Cooper argues that “[s]imilarly, in this case, causation is not too attenuated.” He
claims that Beaver’s dogs “directly and immediately caused [him] to become fearful,
attempt to turn around to avoid the dogs, and fall from his bicycle.” But Cooper was unable
to explain his fall. In Morris, Morris’s leg collapsed when he quickly dismounted his bike,
and the mail carrier injured his back when he spun around. Cooper testified that he decided
to stop, turn around, and go home, but then “there’s a memory gap.” It is unclear from the
evidence what happened between Cooper deciding to go hom e and ending up on the
ground. Therefore, there was a question of fact, and the jury was left to weigh the evidence
and make credibility determinations.
Cooper testified that he saw Beaver’s dogs in the yard near the deck off Beaver’s
house and that when the dogs noticed him, they started “charging toward” him and “barking
and making a lot of noise.” Cooper testified that he decided to “stop and tur n around and
go the other way,” but then “there’s a memory gap” and he next remembered waking up
on the trail. But the first resp onder’s notes indicated that Cooper denied loss of
consciousness.
Michaels’s testimony contradicted Cooper’s testimony regarding when the dogs
started barking and running. Cooper stated that the dogs did not bark or run toward him
until he was behind Beaver’s home, which is at the bottom of the hill. Michaels stated that
he noticed Cooper in his peripheral vision coming down the hill around the same time he
saw and heard the dogs. Michaels’s testimony regarding where he found Cooper also
contradicted Cooper’s testimony. Michaels stated that he found Cooper tangled up in his
bike “pretty much on the curb.” Cooper testified that he did not hit the curb because the

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curb ended prior to where he landed. T he district court instructed th e jury that , to find
Beaver liable, “[t]he greater weight of the evidence” must lead it to believe that Cooper’s
claim is more likely true than not true. This conflicting evidence does not support a
conclusion that Cooper’s claim that the dogs caused his fall is more likely true than not.
Cooper claims that there is no evidence of anything happening other than the dogs
causing him to fall off his bicycle. However, the district court instructed the jury that a
fact could be proved by direct or circumstan tial evidence and that “[a] fact is proved by
circumstantial evidence when that fact can be inferred from other facts proved in the case.”
Here, viewing the evidence in the light most favorable to the jury’s verdict, there
was evidence that Cooper was riding his bicycle down a ste ep hill that has a blind corner
that hugs Beaver’s property line. The hill was described as steep enough that bicyclists
sometimes walk their bikes up the hill and children “squeal[] on the brakes because they
are scared to go down [the hill].” There is a curb on the hill that ends at Michaels’s
property.
Cooper descended the hill approxi mately 19 miles into his ride, traveling
approximately 10-15 miles an hour. It was 8:00 p.m., in a “[v]ery shaded” area, and Cooper
was wearing sunglasses. Cooper was also wearing a helmet and ear buds listening to “light
background music,” and had his feet strapped to his pedals by cages. He was riding a bike
that he had trouble with when the chain jammed the month prior.
As the district court stated , a reasonable jury could conclude that Cooper failed to
prove by a preponderance of the evidence that his injuries were a direct and immediate
result of the dogs’ actions. Cooper could not describe exactly what happened, and the jury

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may have discredited his testimony that he lost consciousness. Based on the circumstantial
evidence, the jury may have concluded that Cooper was not paying attention, was going
too fast in that particular location, could not see well and hit the cu rb as he rounded a
downhill turn, or experienced trouble again with the functioning of his bicycle. Viewing
the evidence in the light most favorable to the verdict, we will not set this verdict aside
because it is not “perverse and palpably contrary to the evidence.” See Anda, 789 N.W.2d
at 888.
Affirmed.