CourtListener 10773749

Texte intégral

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.
January 8, 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. 2025AP1186 Cir. Ct. No. 2023CV2059

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

JEFFREY M. POLFUSS AND KAREN A. POLFUSS,

PLAINTIFFS-APPELLANTS,

NETWORK HEALTH PLAN,

INVOLUNTARY PLAINTIFF,

WISCONSIN MUTUAL INSURANCE COMPANY
AND CASSEE J. BUSCHKE,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Reversed and cause remanded.

Before Graham, P.J., Kloppenburg, and Taylor, JJ.
No. 2025AP1186

¶1 GRAHAM, P.J. A dog owned by Cassee Buschke bit her neighbor,
Jeffery Polfuss, after Polfuss opened a storm door to Buschke’s residence in an
attempt to return an item that had been left at his home. Polfuss alleges that
Buschke is liable under WIS. STAT. § 174.02 (2023-24),1 and he appeals the circuit
court order that granted summary judgment in her favor. On appeal, Polfuss
argues that the court erred when it determined that his claim is precluded as a
matter of law based on the undisputed facts and the court’s analysis of the judicial
public policy factors and our supreme court’s decision in Fandrey v. American
Family Mutual Ins. Co., 2004 WI 62, 272 Wis. 2d 46, 680 N.W.2d 345. We
agree and reverse the order granting summary judgment. As part of our analysis,
we deny Buschke’s motion to strike portions of Polfuss’s reply brief.2

BACKGROUND

¶2 The following facts are derived from the pleadings, depositions, and
interrogatories and are undisputed unless otherwise noted.

¶3 Buschke and Polfuss have lived next to each other for a number of
years. Buschke’s children and Polfuss’s grandchildren often played together, both
at Buschke’s house and at Polfuss’s house. It was not uncommon for Polfuss to
walk over to the house to pick up his grandchildren. When doing so, Polfuss
would go to the door at the back of the house, which is a storm door that opens
into a mudroom. Through that door, which we refer to as the “mudroom door,” it

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Polfuss’s wife is also a plaintiff-appellant, and Buschke’s insurer is a defendant-
respondent. However, for simplicity, when referring to the parties we refer only to Polfuss and
Buschke.

2
No. 2025AP1186

is possible to see into the mudroom and through a second door that opens into the
kitchen.

¶4 Buschke owns a dog. Prior to the 2023 dog bite that is the subject of
this appeal, there was an incident in 2022 in which the dog injured Polfuss when
Polfuss was inside Buschke’s mudroom picking up his grandchildren.3 Polfuss
was somewhat “leery” of the dog following the 2022 incident, but the parties
continued to allow the children to play inside Buschke’s home when the dog was
present.

¶5 The dog bite that is the subject of this appeal occurred in April 2023.
That day, Buschke’s children and Polfuss’s grandchildren were playing together.
At some point, the children took an ice pack from Buschke’s house in order to
treat a scraped knee. Then, at a later point when the children were at Buschke’s
house, Polfuss sought to return the ice pack. Polfuss approached the mudroom
door, and he saw at least one of his granddaughters through the door.

¶6 The parties dispute where precisely in the kitchen Buschke was
when Polfuss approached the mudroom door, whether Buschke was visible to

3
The parties dispute the nature and severity of the 2022 incident, but these disputes are
not material to the public policy factors that are the subject of this appeal. With respect to the
2022 incident, Buschke stated that the dog “nipped” at Polfuss in defense after Polfuss closed the
dog in a doorway and that Polfuss was bruised as a result, but Buschke does not “recall there
being blood.” In contrast, Polfuss stated that the dog “came at” him when he entered Buschke’s
home and bit him, breaking “the skin on [his] arm” and leaving a scar.

While this factual dispute is not material to our resolution of this appeal, it may be
pertinent in the subsequent circuit court proceedings on damages, provided that Buschke is found
liable for Polfuss’s 2023 injury. This is because WIS. STAT. § 174.02(1) provides a gradated
liability scheme. In all cases the owner faces potential liability for “the full amount of damages,”
§ 174.02(1)(a), and potentially “for 2 times the full amount of damages … if the owner was
notified or knew that the dog had previously, without provocation, bitten a person with sufficient
force to break the skin and cause permanent physical scarring or disfigurement,” § 174.02(1)(b).

3
No. 2025AP1186

Polfuss at that time, and whether Buschke “acknowledged” Polfuss in some way.
But what happened next is undisputed. Polfuss did not knock when he reached the
mudroom door. He instead opened the door, saying “where’s the dog?” as he
entered. Almost immediately, the dog ran up to Polfuss and bit his arm, resulting
in a wound that required thirty stitches.

¶7 Polfuss filed this action against Buschke and her insurer. He
claimed that Buschke is strictly liable under WIS. STAT. § 174.02(1), which is
commonly referred to as the dog-bite statute.4 See § 174.02(1)(a) and (b)
(“Subject to [WIS. STAT. §] 895.045 [which addresses contributory negligence] …
the owner of a dog is liable for … damages caused by the dog injuring or causing
injury to a person ….”). Buschke denied liability, alleging, among other things,
that Polfuss’s injury was caused by his contributory negligence.

¶8 The case proceeded to discovery, where much of the focus was on
the nature of the neighborly relationship between the Polfuss and Buschke families
and the circumstances surrounding Polfuss’s entry into Buschke’s mudroom.

¶9 Polfuss stated as follows in his answer to an interrogatory. He and
Buschke were “frequent visitors to each other’s homes,” and it was “common for
each to stop over unannounced to pick up, drop off, or check in on one or more
children.” Polfuss gave the following account of the moments immediately before
he was bit:

4
Polfuss actually filed two claims under the dog-bite statute—one based on the 2022
incident and the second based on the 2023 incident that is the subject of this appeal—as well as a
claim for defamation. The claims based on the 2022 indent and the claim for defamation were
both dismissed and we discuss them no further.

4
No. 2025AP1186

I saw the [mudroom] door was closed, but the interior door
was open through the kitchen. I saw my grandchildren
playing with the other children. I could also see
Ms. Buschke in the kitchen. I did not see the dog.
Ms. Buschke acknowledged me from the inside and
approached. I pulled the [mudroom] door open to meet her
and asked her where the dog was. I reached my arm into
the kitchen to hand her the icepack. The dog came from an
unseen area and latched onto my right arm.5

¶10 Polfuss gave a similar account during his deposition, though he
equivocated about some of the details. He did not appear to waiver from his
assertion that he could see Buschke in the kitchen as he approached the mudroom
door, but he did express some uncertainty about whether and how Buschke
acknowledged him. Polfuss and Buschke’s counsel had the following exchange
when counsel first asked about this topic:

Q: In your [i]nterrogatory answers—these are the questions
that you answered in writing earlier in the case—you said
Ms. Buschke acknowledged you from the inside and
approached. How did she acknowledge you?

A: I’m trying to think, I don’t know if she said, hi, Jeff or
[pause]. Was that from the inside the house? I can’t
remember.

[Polfuss’s attorney]: Do you have that answer [so] that he
can read the whole thing?

A: Yeah can I see it?

Q: Well, let me ask this: You don’t have a recollection, as
we sit here today, if she acknowledged you, correct?

[Polfuss’s attorney]: Form

A: Correct, I don’t know.

5
Buschke argues that we should disregard this interrogatory response, and she filed a
motion to strike portions of Polfuss’s reply brief that cite and discuss the interrogatory response.
We address Buschke’s argument and her motion to strike in the discussion section below.

5
No. 2025AP1186

However, based on an exchange between counsel and Polfuss that occurred later
in the deposition, it appeared that Polfuss recalled that Buschke acknowledged him
verbally, but Polfuss did not recall the specific words that Buschke used:

Q: The question is, in your [interrogatory] answer you said
that [“]Ms. Buschke acknowledged me from inside.[”]

A: Mm-hmm.

Q: Do you have any recollection of how she acknowledged
you?

A: I think she might have said, [“]hi Jeff[”] or, [“]hi
neighbor,[”] something …

Q: Are you guessing?

A: I think yes. Yes, I’m thinking about—guessing about
that one. I’m not quite sure.

Q: Okay, I don’t want you to guess because …

A: No, I understand that. I understand that.

Q: So you just don’t know.

A: It was either, [“]hi neighbor,[”] or, [“]hi, Jeff.[”]

Q: But it’s fair to say you—

A: Yes.

Q: —don’t know, correct?

A: Yes.6

Polfuss also testified that, to the best of his recollection, he had always knocked or
announced himself on prior occasions when he visited the Buschke house, and he

6
Buschke also argues that we should disregard Polfuss’s deposition testimony about the
acknowledgment, in part because she contends that it would be inadmissible because Polfuss
lacked personal knowledge of the events and his recollection was incomplete and speculative.
We address Buschke’s arguments about admissibility in the discussion section below.

6
No. 2025AP1186

never entered the house without being acknowledged. He agreed with Buschke’s
counsel that Buschke never told him that he could enter the home uninvited.

¶11 Buschke provided a different account during her deposition. She
testified that Polfuss “didn’t come over a whole lot” and it was out of the ordinary
to see him inside her home. Buschke further testified as follows. She had not
given Polfuss permission to enter her home “without knocking or otherwise letting
[her] know.” On the day of the incident, Buschke was in the kitchen “talking to
[the] girls,” and “the next thing” she knew was that she “heard somebody come
into [the] house and say ‘where’s that dog.’” Buschke did not know that it was
Polfuss until she ran into the mudroom and saw him. Had Buschke known that
Polfuss was coming over, she “would have restrained” the dog.

¶12 Buschke moved for summary judgment, arguing that she was not
liable for Polfuss’s injury arising from the 2023 dog-bite incident “as a matter of
public policy” pursuant to Fandrey, 272 Wis. 2d 46. Specifically, Buschke cited
Fandrey for the proposition that judicial public policy factors preclude liability
when a dog is kept unrestrained inside its owner’s home and the dog “bites
someone who enters [the owner’s] house without her knowledge or consent.” See
id., ¶8. Buschke argued that, as in Fandrey, Polfuss “did not have express or
implied consent” to enter the house where he was bit.

¶13 Polfuss opposed the motion. He argued, among other things, that
Fandrey is distinguishable because “Polfuss’s entry was not an intrusion” and was
instead “a reasonable act consistent with the established neighborly relationship
between the parties.” Polfuss also cited Fandrey for the proposition that the
public policy factors should be employed to preclude liability only if the factual
scenario is “so extreme that it would shock the conscience of society to impose

7
No. 2025AP1186

liability.” See id., ¶15. Here, he argued, “[n]othing about [holding the dog owner
liable under] the facts of this case shocks the conscience or undermines the
principles of justice.”

¶14 Following a hearing in which the parties were given the opportunity
to present arguments, the circuit court granted Buschke’s motion for summary
judgment. Specifically, the court determined that Fandrey is “controlling
precedent” and that here, as in Fandrey, Polfuss entered Buschke’s house without
her consent. Under these circumstances, the court concluded, it would be “too
disproportionate” to Buschke’s culpability to impose liability because Polfuss “put
himself in the position as a trespasser.” The court also concluded that it would
“shock [the] conscience to impose liability in a case like this” because it would
require dog owners to lock up their pets “all the time no matter what is going on,”
which would place “an unnecessary burden on dog owners to not be able to enjoy
their pets in their own home without fearing that they are going to be sued for
someone entering without permission.” Polfuss appeals.7

DISCUSSION

¶15 We review an order granting a motion for summary judgment de
novo, applying the same methodology as the circuit court. Racine County v.
Oracular Milwaukee, Inc., 2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88.
Summary judgment is appropriate “if the pleadings, depositions, answers to

7
In their appellate briefs, both parties often cite to the appendix without including
parallel citations to the appellate record. We remind counsel of the obligation to follow the rules
of appellate briefing in WIS. STAT. ch. 809. See WIS. STAT. § 809.19(1)(d)-(e) (providing that
briefs must contain “appropriate references to the record” and “citations to the … parts of the
record relied on”); Balsimo v. Venture One Stop, Inc., 2024 WI App 58, ¶4 n.2, 414 Wis. 2d 27,
13 N.W.3d 228 (providing that “the appendix is not the record”).

8
No. 2025AP1186

interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2). When
considering a motion for summary judgment, the facts must be viewed in the light
most favorable to the nonmoving party, State Bank of La Crosse v. Elsen, 128
Wis. 2d 508, 512, 383 N.W.2d 916 (Ct. App. 1986), and “if more than one
reasonable inference can be drawn from the undisputed facts, summary judgment
is not appropriate,” Schmidt v. Northern States Power Co., 2007 WI 136, ¶47,
305 Wis. 2d 538, 742 N.W.2d 294.

¶16 WISCONSIN STAT. § 174.02(1) provides that, subject to the statute
addressing contributory negligence, “the owner of a dog is liable for” either the
full amount or double the full amount of “damages caused by the dog injuring or
causing injury to a person ….” § 174.01(1)(a) and (b). In describing the effect of
the dog-bite statute, our supreme court has stated that it “imposes strict liability on
a dog owner for injuries caused by the dog” and “obviates the need for a plaintiff
to prove specific acts of negligence.” Fandrey, 272 Wis. 2d 46, ¶9. Accordingly,
a plaintiff bringing a personal injury claim under the dog-bite statute need not
prove specific acts of negligence, and need only prove causation and damages. Id.
This aligns with the purpose of the statute, which is to hold the person who “owns,
harbors, or keeps a dog responsible for injuries” and “to protect those people who
are not in a position to control the dog.” Pawlowski v. American Fam. Mut. Ins.
Co., 2009 WI 105, ¶76, 322 Wis. 2d 21, 777 N.W.2d 67 (citation omitted).

¶17 At the same time, the strict liability imposed by WIS. STAT.
§ 174.02(1) is not the same thing as “absolute liability.” Fandrey, 272 Wis. 2d 46,
¶9 n.5. Among other things, a plaintiff’s contributory negligence may reduce the
amount of recovery or bar recovery altogether. See § 174.02(1) (providing that the

9
No. 2025AP1186

liability imposed by the strict liability statute is “[s]ubject to [WIS. STAT.
§ ]895.045]”); § 895.045 (setting forth rules regarding contributory negligence).
Generally speaking, issues of comparative and contributory negligence are matters
for a jury to decide. See, e.g., Gross v. Denow, 61 Wis. 2d 40, 48, 212 N.W.2d 2
(1973).

¶18 Separately, a court might conclude that liability is precluded as a
matter of law based on the court’s analysis of the so-called public policy factors.
This determination is a judicially imposed “limitation[] on liability,” which is
based on the court’s assessment of the public policy factors and its determination
that it would be “unfair to hold the party liable.” See Fandrey, 272 Wis. 2d 46,
¶11 (citing Palsgraf v. Long Island R.R., Co., 248 N.Y. 339 (1928) (Andrews, J.,
dissenting) (citation modified). To make this determination, the court considers
six factors, all of which were first articulated in the development of the common
law of negligence. Id., ¶1 n.1; see also Pawlowski, 322 Wis. 2d 21, ¶59. These
factors consider whether:

[1] the injury is too remote from the negligence or [2] too
“wholly out of proportion to the culpability of the negligent
tort-feasor,” or [3] in retrospect it appears too highly
extraordinary that the negligence should have brought
about the harm, or [4] because allowance of recovery
would place too unreasonable a burden upon [a class of
tortfeasors], or [5] be too likely to open the way to
fraudulent claims, or [6] would “enter a field that has no
sensible or just stopping point.”

10
No. 2025AP1186

Pawlowski, 322 Wis. 2d 21, ¶59 (quoting Colla v. Mandella, 1 Wis. 2d 594,
598-99, 85 N.W.2d 345 (1957) (alterations in original)).8

¶19 Although any one of these public policy factors might be dispositive,
Fandrey, 272 Wis. 2d 46, ¶29, dismissing a claim based on the public policy
factors is reserved for cases where the facts are “extreme” and it would “shock the
conscience of society to impose liability,” id., ¶15 (citing Pfeifer v. Standard
Gateway Theater, 262 Wis. 229, 238, 55 N.W.2d 29 (1952)). In those
extraordinary cases, courts may “step in and hold as a matter of law that there is
no liability.” Id.

¶20 Like this case, Fandrey also addressed a WIS. STAT. § 174.02(1)
claim arising from a dog bite that occurred in the dog owners’ home. There, at a
time when the dog owners were not home, one of their friends entered the house
with a three-year-old child in order to drop off a plate of cookies. Fandrey, 272
Wis. 2d 46, ¶3. The front door was unlocked, but it was undisputed that the dog
owners had not been expecting visitors and had not given their friend permission
to enter their house when they were not home. Id. As the friend was leaving a
note, the child wandered off into another room and was bitten by the dog. Id.

8
We observe that our supreme court has articulated the second factor in two different
ways. In Fandrey, for example, on one occasion the court said that the question was whether
“recovery [was] too ‘wholly out of proportion’” to the defendant’s culpability, Fandrey v.
American Family Mutual Ins. Co., 2004 WI 62, ¶1 n.1, 272 Wis. 2d 46, 680 N.W.2d 345
(emphasis added), and on another occasion, the court said that that question was whether “the
injury was too wholly out of proportion” to the defendant’s culpability, id., ¶15 n.12 (emphasis
added). In this opinion, we use the formulation set forth in Pawlowski v. American Family
Mutual Ins. Co., 2009 WI 105, ¶76, 322 Wis. 2d 21, 777 N.W.2d 67, which directly quotes the
court’s earlier decision in Colla. The distinction is not dispositive in this case, and under either
formulation, our conclusion is the same.

11
No. 2025AP1186

¶21 Under these circumstances, our supreme court determined that
liability was precluded as a matter of law based on the undisputed facts and the
court’s analysis of the public policy factors. Among other things, the court
determined that allowing recovery “would be too out of proportion with the
culpability of the [dog owners],” given that the only thing they did “wrong” was to
“leave their door unlocked.” Id., ¶34. The court also determined that “liability …
would place too unreasonable a burden on the [dog owners]” because it was
unforeseeable that the friend would enter the house when they were not home, and
because it would be “unreasonable” to “require[e] homeowners to do anything
more than keep their dogs in the house when the homeowners are away.” Id., ¶35.
Finally, the “undisputed facts” supported a conclusion that the friend “did not have
actual or implied consent to enter the [dog owners’] home.” Id., ¶38. If liability
were to be imposed under those facts, the court stated, “the door would be open to
imposing liability on homeowners when a burglar enters [their] home and is
injured by a dog.” Id., ¶39. Accordingly, the court concluded, recovery “would
enter a field that had no sensible or just stopping point.” Id., ¶36.

¶22 We now turn to the case at bar. Polfuss argues that the circuit court
erred in granting summary judgment based on the public policy factors. Among
other things, he argues that the facts here are materially different from the facts in
Fandrey, and that there is a genuine dispute of fact about whether Buschke
acknowledged him before or as he opened the mudroom door and stepped inside.
In her response, Buschke argues that Fandrey is directly on point. She also argues
that we should disregard the evidence in the summary judgment record that would
support an “acknowledgment” theory, and she filed a motion to strike portions of
his reply brief asking us to disregard those and other facts largely on the same
ground.

12
No. 2025AP1186

¶23 We begin by considering and rejecting Buschke’s argument that we
should not consider certain facts that are part of the summary judgment record.
We then turn to whether Buschke is entitled to summary judgment.

¶24 As noted, in her response brief and then more forcefully in her
motion to strike, Buschke argues that we should not consider certain evidence in
the summary judgment record. Specifically, Buschke takes aim at evidence in the
record that could support a finding that Buschke acknowledged Polfuss in some
manner before or as he entered the mudroom.

¶25 In particular, Buschke points to the above-cited interrogatory
response and deposition testimony on this topic, both of which were included in
the summary judgment materials that were filed in the circuit court. Indeed, it was
Buschke who included these items as exhibits to the affidavit she filed in support
of her motion. Even so, Buschke contends, we should not consider the arguments
Polfuss makes about this evidence because Polfuss did not specifically reference
or cite the evidence in his circuit court brief opposing the motion or in the
argument his counsel made during the hearing before the circuit court. Therefore,
she argues, Polfuss has forfeited any reliance on this evidence on appeal.9
Buschke asks us to strike certain pages in Polfuss’s reply brief for that same
reason, and also because, she contends, the brief’s assertions about the evidence

9
Buschke uses the word “waiver,” but her argument is based on the concept of
forfeiture. State v. Ndina, 2009 WI 21, ¶¶28-29, 315 Wis. 2d 653, 761 N.W.2d 612 (discussing
the differences between waiver and forfeiture).

13
No. 2025AP1186

“[m]ischaracterize[] … the record” and are “unsupported by” any admissible
evidence in the record.10

¶26 We start with Buschke’s argument that Polfuss forfeited any reliance
on the acknowledgment evidence. As noted, the interrogatory answer and
deposition testimony in question are part of the summary judgment record, and
therefore, we may consider them as part of our de novo review on appeal. See
Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶34, 236 Wis. 2d
435, 613 N.W.2d 142 (providing that appellate summary judgment review allows
the court to consider those “proofs that were before the circuit court” at the time of
the summary judgment decision). It may have been better advocacy for Polfuss’s
counsel to specifically point to these portions of the interrogatory answer and
deposition transcript as part of the presentation of his argument to the circuit court.
However, counsel’s failure to do so neither forecloses our consideration of that
evidence in our de novo review, nor forecloses, under the circumstances here,
Polfuss from making arguments based on this evidence on appeal.

¶27 As a general rule, when a party fails to raise an issue before the
circuit court, the party forfeits that issue on appeal. See Schill v. Wisconsin
Rapids Sch. Dist., 2010 WI 86, ¶45 & n.21, 327 Wis. 2d 572, 786 N.W.2d 177.
That is not what happened here. To illustrate, in his circuit court brief, Polfuss

10
In addition to arguing that we should disregard Polfuss’s arguments about the
acknowledgement evidence, Buschke also argues that we should disregard certain assertions that
Polfuss makes in his briefing, including his assertions that Buschke “never filed a police report”
claiming that he was a trespasser and that she conceded that this was her dog’s second bite.
According to Buschke, both assertions are false and unsupported by any record evidence, and had
Polfuss made these assertions during the circuit court proceedings, Buschke would have
introduced evidence to demonstrate that they are false. We agree with Buschke that these two
assertions are not supported by any evidence in the summary judgment record and we disregard
them on that basis.

14
No. 2025AP1186

argued that he could see Buschke in the kitchen doorway as he approached and his
“entry [into the mudroom] was not an intrusion.” Then, during the hearing, his
counsel argued that Buschke’s presence and conduct at that time explained why
Polfuss did not think he had to knock before entering. Specifically, counsel
argued that Polfuss “sees … Buschke[] standing in that porch breezeway area” as
he approached, and he asserted that it would seem “very odd” and “suddenly very
formal” for Polfuss to ring the doorbell when Buschke was right there “staring” at
him through the mudroom door. Counsel’s position was that “there’s a jury
question on whether or not he had permission to come onto the premises.”

¶28 At its core, Polfuss’s argument on appeal is the same. That is, he
argues that there is a factual dispute as to whether he had permission to enter
Buschke’s home on the day of the injury. It is true that Polfuss has now chosen to
support the issues and arguments he raised in the circuit court by emphasizing
different facts from the summary judgment materials, but Buschke does not
identify any legal authority to support the position that an appellant is prohibited
from citing portions of the record if the appellant did not cite those portions in the
circuit court.

¶29 Buschke may be arguing that the policies underlying the forfeiture
rule support its application here. See State v. Ndina, 2009 WI 21, ¶30, 315 Wis.
2d 653, 761 N.W.2d 612 (addressing the policies). Specifically, she argues that if
Polfuss had referenced the acknowledgment evidence during the circuit court
proceeding, she would have developed an argument that the evidence was not
admissible or provided additional contrary evidence beyond what is included in
the summary judgment record. We are not persuaded.

15
No. 2025AP1186

¶30 Beginning with admissibility, Buschke has now had the opportunity
to develop her argument that the acknowledgment evidence is inadmissible, and it
is not persuasive. According to Buschke, Polfuss admitted during his deposition
that he could not recall whether Buschke acknowledged him from her position in
the kitchen doorway, but we do not read the testimony that way. Considering the
testimony in context and in the light most favorable to Polfuss, as we must, we
understand him to have testified that he recalled being acknowledged, but not the
precise words Buschke used to acknowledge him. Buschke also argues that the
testimony would be inadmissible because his recollections were incomplete and
speculative. Again, we disagree. Although Polfuss’s testimony was light on
specific details, his lack of certainty goes to the weight of the testimony, which is
for the jury to assess, rather than to its admissibility. See State v. Perkins, 2004
WI App 213, ¶15, 277 Wis. 2d 243, 689 N.W.2d 684 (“It is the jury’s job to
resolve any conflicts or inconsistencies in the evidence and to judge the credibility
of the evidence.”).

¶31 We now turn to Buschke’s argument that, had Polfuss pointed to the
acknowledgment evidence during the circuit court proceedings, Buschke could
have submitted “additional proof to address evidentiary insufficiencies …,
including evidence not contained in the … record on appeal.” It is true that
“[a]pplication of the [forfeiture] rule is appropriate where a [forfeited] argument
could have been rebutted with factual information.” Gruber v. Village of North
Fond du Lac, 2003 WI App 217, ¶27, 267 Wis. 2d 368, 671 N.W.2d 69. Here,
however, Buschke does not identify any evidence that she could have presented
which would have called Polfuss’s account into question to such a degree that we
would conclude that there was no genuine issue of fact. Perhaps Buschke might
have introduced more evidence that would support her version of events, but all

16
No. 2025AP1186

that would have done is to further demonstrate a dispute of fact, which would
undermine Buschke’s argument for summary judgment. For all of these reasons,
we will not disregard Polfuss’s arguments on the basis of the forfeiture doctrine.

¶32 Before concluding on this point, we address what we understand to
be the remaining argument in support of Buschke’s motion to strike. As noted,
Buschke asks us to strike certain pages of Polfuss’s reply brief because, she
contends, they “[m]ischaracterize … the record” by making assertions that are
“unsupported by” any admissible record evidence. As we best understand,
Buschke’s argument is that Polfuss’s reply brief mischaracterizes his deposition
testimony about his proximity to Buschke at the time he opened the mudroom
door. Specifically, Buschke argues that Polfuss’s reply suggests that “the parties
were face-to-face or a foot apart,” which, Buschke argues, is inconsistent with
Polfuss’s deposition testimony that she was in the kitchen.

¶33 We do not agree that the reply mischaracterizes the evidence. As
discussed, it is undisputed that the mudroom door opens to the mudroom, and
there is another door in the mudroom that opens into the kitchen. Polfuss has
consistently taken the position that he saw Buschke in that kitchen doorway, and
Buschke herself testified that the mudroom door and the kitchen door are “a few
feet” apart. In any event, if Polfuss’s arguments stretch the significance of the
record evidence, this is not unheard of in appellate briefing and this court is well
equipped to handle such situations. We consider the evidence in the record, rather
than any party’s characterization of that evidence, and therefore, even if Polfuss
has exaggerated the import of some of the evidence in the record, that does not
provide a basis to strike those arguments in his brief.

17
No. 2025AP1186

¶34 We now address whether Buschke is entitled to summary judgment.
Buschke argues that the Fandrey case stands for the proposition that the public
policy factors necessarily preclude a dog owner’s liability for a dog-bite injury if
the bite occurred in the dog owner’s home and the injured party entered the home
without the dog owner’s knowledge or consent. She further argues that here, the
undisputed facts show that Polfuss entered Buschke’s home without her
knowledge or consent. Therefore, she argues, the public policy factors preclude
liability and she is entitled to judgment as a matter of law. We disagree for several
reasons.

¶35 First, we do not necessarily read Fandrey as setting forth an ironclad
rule that would preclude liability based on the public policy factors any time an
injured party enters a dog owner’s home without the owner’s knowledge or
consent. Generally speaking, the application of the public policy factors turns on
the specific facts of the case, and we have previously explained that in public
policy cases, “prior decisions seldom dictate the result in subsequent cases.”
Tesar v. Anderson, 2010 WI App 116, ¶12, 329 Wis. 2d 240, 789 N.W.2d 351;
see also Erdmann v. Progressive N. Ins. Co., 2011 WI App 33, ¶9, 332 Wis. 2d
147, 796 N.W.2d 846 (“we have repeatedly cautioned that the application of
public policy [factors] to bar liability must be done on a ‘case-by-case’ basis”).

¶36 Although the lack of the dog owner’s knowledge or consent to enter
the home was certainly important to the Fandrey court’s analysis, the court also
relied on a number of other undisputed facts as part of its determination that the
public policy factors precluded liability in that case. For example, the court
considered the undisputed facts showing that the injury occurred when the dog

18
No. 2025AP1186

owners were away from the home and not expecting visitors, and that the owners
had done all that could reasonably be expected of them under the circumstances,
which was to keep the dog inside the home when they were away. The court
specifically emphasized there was nothing more that the dog owners could do at
the time to further control their dog, except to keep the dog kenneled, muzzled, or
under lock and key. Fandrey, 272 Wis. 2d 46, ¶35. And the court stated that it
would be “unreasonable to force homeowners to keep their homes and dogs under
lock and key at all times to avoid liability.” See id., ¶¶34-35. Accordingly, the
decision in Fandrey did not turn exclusively on the dog owners’ lack of
knowledge or consent.

¶37 Second, even if we were to assume that Buschke has correctly
described the rule from Fandrey, summary judgment would not be warranted
because there are genuine issues of disputed fact about Buschke’s knowledge and
consent. Looking at the facts in the light most favorable to Polfuss, as we are
required to do as part of the summary judgment methodology, there is evidence in
the record that Polfuss and Buschke were “frequent visitors to each other’s
homes,” and that it was “common” for them to stop over at each other’s homes
“unannounced” to pick up or check in on the children. There is also evidence in
the record that on the day of Polfuss’s injury, he went to Buschke’s house at a time
when his grandchildren were present in the home, and that Buschke saw him
approach the mudroom door and acknowledged him in some way. To be sure,
Buschke vehemently disputes Polfuss’s account, but that just demonstrates that the
facts about knowledge and consent are disputed. Accordingly, unlike Fandrey,
this is not a case in which the “undisputed facts” support the conclusion that
Polfuss “did not have actual or implied consent to enter” Buschke’s mudroom
door. Id., ¶39.

19
No. 2025AP1186

¶38 Finally, putting to the side the disputed facts about knowledge and
consent, even assuming that Buschke did not acknowledge Polfuss in any way, we
are not persuaded that this is an “extreme” case that would warrant application of
the public policy factors to bar liability. That is, on our de novo review, we do not
think that it would “shock the conscience” that Buschke would be liable under
these circumstances for injuries caused by her dog. See id., ¶15 (“in cases so
extreme that it would shock the conscience of society to impose liability, the
courts may step in and hold as a matter of law that there is no liability”); id., ¶6
(“Whether public policy acts as a bar to a claim in any given case is a question of
law that this court decides de novo.”).

¶39 The evident policy underlying the dog-bite statute is to make dog
owners responsible when their dogs cause injury. And here, unlike in Fandrey,
the undisputed facts do not establish that Buschke did all that was reasonably
possible to prevent her dog from causing injury. That is, this is not a situation
where Buschke was not present and not expecting visitors and had done all that
would be reasonably expected to control her dog on the day of the incident. As
noted, there were guests (the Polfuss grandchildren) at the Buschke home
throughout the day, and Buschke was also present and presumably able to
supervise and control the dog. Although there is nothing in the record to suggest
that the dog had acted aggressively towards anyone other than Polfuss, dogs can
have unpredictable behavior, and here the dog was roaming freely in the home
while invited guests came and went. Under these circumstances, it does not
“shock the conscience” that a dog owner would be liable for injury when the dog
(who is ostensibly under his owner’s control) runs up and bites a neighbor after the
neighbor did nothing more threatening than to open an exterior door to a
mudroom. We therefore are not convinced that imposing liability would be “too

20
No. 2025AP1186

out of proportion with [Buschke’s] culpability,” “place too unreasonable a burden”
on her, or “enter a field that has no sensible or just stopping point.” See id., ¶¶15,
34-36. Although a jury might end up determining that Polfuss was negligent to a
degree that precludes his recovery, this case is not so extreme that his claim cannot
proceed as a matter of law.

CONCLUSION

¶40 For the reasons explained above, we reverse the grant of summary
judgment and remand to the circuit court. Separately, we deny the motion to
strike.

By the Court.—Order reversed and cause remanded.

Not recommended for publication in the official reports.