Articles

Detailed Discussion of Dog Bite Laws

  • David S. Favre
  • Michigan State University - Detroit College of Law
  • Publish Date: 2004 (updated 2009)
  • Place of Publication: Michigan State University - Detroit College of Law

I. The Dog Bite Problem

 

While animal damage issues apply to all categories of animals, it is the dog that dominates the reported and unreported cases.  Dogs cause significant injury to humans, sadly on a regular basis.  While it is estimated that the number of cats in the United States slightly outnumbers the number of dogs, the ever popular dogs number approximately 55 million in the U.S.  In 1996, the Insurance Information Institute estimates that 3.5 million dog bites were reported to local authorities and that insurance companies paid $1 billion in dog bite claims. [i]  A survey of injuries in the 1980's showed an average of two million bites per year, with half the victims left scarred and about a third losing time from work or school.  During the 1980's dog bites accounted for approximately $30 million in health care expenses annually.[ii]   Also a sad fact of the dog bite story is the number of small children who are harmed by dogs in a wide variety of fact patterns.  In 1997 the Personal Injury Verdict Reviews reported a number of dog bit cases in which settlement amounts vary: $1,500 for dog bite with puncture wounds to the upper thigh, $30,000 for dog bit causing laceration of the lip causing scaring, and $100,000 for an attack by two pit bulls who bit a 10 year-old male causing facial scarring. One study suggest that over two-thirds of the incidents involved single bites with the next largest set being multiple bits, and the final category of injuries caused by being knocked down or thrown. [iii]

 

Jury verdicts may be unpredictable.  In one New Hampshire case, a woman received 27 dog bites form two pit bulls while in a friend’s apartment.  She was in the hospital for two weeks and had $40,000 in medical bills, but was unemployed.  On the basis of common law duty to keep rented premises free from dangerous conditions, she sued the landlord of the building, but not the owners of the dogs, as the owner was her friend.  A jury returned a verdict of $2.14 million.  The attorneys settled the case for $1.1 million while the judge was considering a motion for judgment notwithstanding the verdict. [iv]  One analysis of animal injury cases found that on average the jury verdict was 24% higher than settlements for the same kind of injury. [v]

 

If the animal owner has insurance (and this is strongly urged upon all owners), then the risk of financial devastation is significantly reduced.  If the owners of an animal have no assets, then they are effectively “judgment proof” and the likelihood of a case being filed against them is low.  If the owner of an animal has some assets, but no insurance then significant risk exist.  For example, in the case of DeRobertis v. Randazzo, 462 A2d 1260 (NJ 1983), the plaintiff infant was bitten on the head by the chained-up dog of the defendant.  The child had nightmares for a year but a scar on the scalp was hidden by hair.  The jury awarded the plaintiff $40,000.  When this award was upheld by the Appellate Division, the plaintiff sought and obtained an order directing the sale of defendant Randazzo's home to satisfy the judgment.  On filing his petition for certification to the state supreme court, Randazzo had to pledge his house as security for the judgment. (The case was remanded for new trial.)  Thus, ownership of even one animal can represents significant financial risk.

 

The law has the difficult problem of deciding when to hold the owners of dogs liable for what is usually totally unintended by the owner but is nevertheless an expensive and painful injury to an individual who has done nothing wrong.  The law keeps vacillating from demanding a showing of fault by the owner of the dog, to holding the owner liable for all foreseeable injuries regardless of the degree of the dog owner’s fault (strict liability).

 

 

II. Introduction to Tort Law

Historically within the United States, recovery for injury to the person or property was based upon one of the legal concepts found within the family of common law torts.  These concepts include trespass, negligence, and strict liability.   Each concept has its own elements that must be shown by the injured party before the law will allow monetary recovery for the damages inflicted by an animal.

 

The legal wrong of trespass arises when one party goes upon the land of another without permission.  An animal is considered an extension of the owner /possessor of the animal.  If a car was improperly parked and rolled onto the land of another, causing damage, then the owner /possessor of the car would be liable for the damages caused.  Likewise, it is appropriate to consider an animal to be a legal extension of the owner /possessor of the animal.  However, it should be noted that animals represent a complex set of issues and as a result the owner may or may not be liable for an animals trespass. 

 

Negligence allows recovery for the action or lack of action by an animal owner /keeper.  Recovery at law under this concept requires a showing by the injured party that there was a legal duty owed to the injured party by the animal owner /keeper, and that the injury arose because of a breech of that duty.  Not all harms are recoverable because not all duties of a moral or social nature rise to the level of a legal duty. [vi]

 

Strict liability arises in the animal context when the animal at issue is either a wild animal or a domestic animal with a known vicious propensity.  In more recent times, state legislatures have added statutory material which is either in addition to the common law tort actions or in replacement of the tort actions, and usually impose more liability on the owner or possessor of an animal.  The following states impose strict liability to dog owners, regardless of their knowledge of their dogs’ vicious propensity:  Alabama, Arizona, California, Colorado, Connecticut, Delaware, D.C., Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Washington, West Virginia, and Wisconsin. [To view this list in a table that describes the provisions, click here].

 

 

III. Examples of Common Law Torts Involving Dogs

Assume that there is a Mr. Jones and that he is the owner of a three year old German Shepard.  He and the dog live in typical suburban neighborhood containing usual mix of people of all different ages.  The dog has the run of the back yard which is surrounded by an appropriate fence to confine the dog to the back yard.  Mr. Jones has had the dog since it was a puppy.

 

Example #1 – Mr. Jones does not like neighbor East and one day takes his dog and lets it loose in the back yard of Mr. East hoping it would dig up their garden and frighten the East’s cat.  In fact, the dog ran through wet cement chasing the cat and then killing the cat. When the East’s daughter came to see what was happening, the dog bit her on the leg.  Mr. Jones has engaged in an intentional act and all of what the dog did was foreseeable by any reasonable person even if the specific acts are not what Mr. Jones intended.  Mr. Jones would be civilly liable for all the damage caused by the dog as it was an intentional trespass. (Criminal liability would most likely arise from these facts, see footnote #1 infra.)

 

Example #2 – One morning Mr. Jones lets the dog out for a morning run and the dog decides to go onto the neighbors land and causes the harm and injures described above.  The dog going onto the land of another could constitute a common law trespass.  However the rules as to trespass are complex and are set out later in this Chapter.

 

Example #3 – Mr. Jones likes his neighbor East.  One day with the dog in the backyard and Mr. Jones is at work, the neighbor East’s little girl goes into Mr. Jones backyard, by opening a simple latch and takes the dog it to her backyard. The dog then causes the same harm: runs through the cement, kills the cat and bites the little girl.  Assuming that this is the first time that anyone had tried to remove the dog from the backyard and that the dog had not previous appeared to be dangerous, (show a vicious propensity) then in this example Mr. Jones would not be liable.  He has done no intentional act which causes the harm.  Likewise he has not forgotten to do something (been negligent) which might have prevented the harm.  At common law even though his property caused the harm and injury, he would not be liable because he had no fault.

 

Example #4 – same facts as #3 plus the state where the events occurred had adopted a strict liability statute.  In this case, the lack of fault by Mr. Jones is not a defense.  For financial liability to arise all that need be shown is that Mr. Jones owns the dog and that the dog caused the damages in question.  However, most strict liability statutes have some defenses or limitation of applications built into them. (See discussion in D, 1.  Strict Liability Based on Vicious Propensity, infra.)

 

Example #5 – same facts as #3 plus the additional information that Mr. Jones knows that the dog is likely to bit small children and also knows that the East’s child likes to come over and talk to the dog .  Now the common law tort analysis has different roads to travel.  If there is information the owner knows or should be aware of about the propensity of his dog to bit humans, that is, that it represents more that the normal risk to others, then Mr. Jones will be liable for the injuries if he does not take the necessary precautions.  As he was negligent in securing the dog in the back yard he will be liable for the injured caused.  He may also be liable under the concept of strict liability, see § infra.

 

 

IV. Theory of Tort Liability in Animal Cases

One point to ponder is why are there so many rules that relate animals?  What is the policy that supports all these different rules?  Common law torts is a legal structure that seek to allocate risk among the members of society.  The more valuable a particular activity to society, the more willing is the society, through its legal rules, to shift risk of the activity to others.  For example, historically the raising of cattle has been important to society as an economic activity and as a food source; therefore society has been protective of this activity.

 

Tort law has traditionally sought to balance the “usefulness” of an animal with the risk it represents to the public. Low risk animals such as sheep and cats impose no special duty of care on owners or possessors unless the owners have specific knowledge that their specific animal possesses unusual risk to others.  It is presumed that an individual coming face to face with these animals will not face risk of harm beyond the general knowledge and capabilities of the public. Additionally, the types of harm threatened by cats and cows are not normally life threatening.  Some animals such as lions are presumed by the law to represent high risk to others and, therefore, mere possession of one of these species will give rise to the highest duty of care for the owner/possessor.  Some animals, particularly those of economic value, such as bulls, stallions and rams are not viewed by the law “as being as being abnormally dangerous animals, but rather as animals routinely kept for stud purposes, so that the particular danger involved in their dangerous tendencies has become a normal incident of civilized life.” [vii]  Obviously not every person in today’s society would have equal personal knowledge of the dangers represented by these animals, but the owners of the animal receive the legal benefit of having their animals not being presumed dangerous, like the law does for the owner of a lion.  

 

 

V. Dangerous or Vicious Propensities

 

            The early common law distinguished between wild and domesticated animals for purposes of imposing liability on their owners.  Owners of fierce or wild animals were absolutely liable for harm caused to others.  However, owners of domesticated animals, such as dogs, were liable only if they had scienter; that is, the owners were liable only if they knew of the animal's dangerous or mischievous propensities.  Emmons v. Stevane, 77 N.J.L. 570, 572 (E. & A.1909) (reversal of directed verdict for owner of dog who knew his dog was vicious). [viii]

 

Under several of the different tort theories and state statutes discussed in this chapter the liability of an animal’s owner will rise or fall upon a showing of the “dangerous or vicious propensity” of an animal.  Some wild animals such as lions will be presumed to have this propensity and tort law will impose strict liability on the owners without showing that a specific animal has a dangerous or vicious propensity.  For other animals it is a more complex process of analysis.  The classic tort concept is easy to state.  “The rule is that one who keeps a vicious dog, with knowledge of its savage and vicious nature, is presumed to be negligent if he does not keep the animal secure from injuring others.” [ix]

 

Although almost all cases use the term “vicious” is used to state the rule of tort liability this word is really misleading.  The term “vicious” suggest that the actor has a particular mind set, one which disregards the safety of others, or an action driven from an emotion such as hate or even an action which is not proportional to the circumstances.  Assuming that nonhuman animals have the mental capacity for viciousness, and some dogs and horses seem to exhibit such behavior, tort liability has in mind something actually broader in concept, something more objective than the mind set of the animal.  It is not the animal's spirit or motivation which is focused upon, rather, it is an animal's risky propensities, (i.e., the likelihood that it will cause harm or injury).  A Great Dane or St. Bernard may be of a playful or friendly disposition, but if it has a known propensity to jump on people then the owner may be strictly liable for injury caused by such activity. [x]  What the law is actually concerned about is dangerousness, unacceptably risky actions by animals.  Therefore the phrase “dangerous animal” is much more accurate in describing the threshold of legal liability than the phrase “vicious propensity.”

 

The analysis for deciding whether legal liability will attach to a particular action by an animal will have three steps:

  • Was the action of the animal with the category of “dangerous” activities from which the law seeks to protect the general public?
  • Had the animal in question shown a previous propensity to engage in this conduct?
  • Did the defendant have actual or constructive knowledge of the animal’s propensity?
  • Did the animal’s dangerous conduct cause the harm?

 As to the first point, some actions are clearly within this dangerous category, such as dog bites and bull goring. Other actions are clearly not, such as cats rubbing your leg, or dogs barking. In one case a women claimed that the defendant’s barking dogs frightened her into the street where she was hit by a car.  The court found no liability for the dog owner. [xi] 

 

If a person trips over a sleeping dog, and seriously injuries him or herself, there can be no recovery against the dog’s owner as a dog sleeping is not the sort of high risk activity the law is seeking to protect against.  On the contrary, one kind of injury, falling off a horse, possesses a particular analytical challenge:

 

Because each individual injury resulting from an animal's behavior, as well as each individual animal, is different, this analysis is necessarily fact sensitive. Thus, although we recognize that the possibility of being thrown from a horse increases with the inexperience of the rider or with the degree of training and disposition of the horse, or both, we are not prepared, in this instance, to conclude that the gray mare posed an unreasonable risk of harm to the plaintiff. Not every risk of injury posed by an animal is an unreasonable risk. In general, horseback riding entails the risk of being thrown whether one is an experienced equestrian or a beginning rider. Indeed, in this instance, the evidence tends to establish, and the trial court found, that the horse was of a gentle nature and the movement it made  which caused the plaintiff to fall off or be "thrown" was not aggressive behavior or even unusual. In other words, it was horse-like behavior. Unfortunately, the plaintiff was simply caught off-guard by the sudden movement of the animal. [xii]

 

(For a discussion on Equine Activity Liability Statutes, which seek to ameliorate liability for horse facility operators, click here.)  If a horse rises high in air on its back feet every time that a car or dog comes within 50 yards of it, then that is a dangerous propensity that a rider should be protected against or warned about.  In most cases, as with those dealing with dog bites, there is no real question that the conduct of the animal is a dangerous one that falls within the protection of the law.  The analysis then moves to the issue of the propensity of the animal.

 

The necessity of showing a prior propensity exist because the law makers (judges or legislature) believe that in fairness the owner of an animal should not have legal liability for the actions of its animals unless there is notice of the likelihood of the dangerous activity.  This gives the owner the opportunity to do something about controlling the risk the animal represents. [xiii]  The clearest case is where the animal has previously injured another person in an identical way – a dog bite, horse kick, or cat scratch. [xiv]  This does not mean that each dog is entitled to one bite. [xv]  Dogs and horses may well evidence signs of a dangerous propensity before they cause any actual harm.

 

What the defendant /owner knew is often the point of contention in the lawsuit.  This is not necessarily an easy point for the injured party to show a court.  Consider if on one Sunday afternoon Fido bites Small Sam who was walking down the street past Fido’s front yard.  Fido has been owned by Big Boy for three years.  For Small Sam to recover for the injury, he will have to show Fido has previously shown this propensity and that Big Boy knew about it.  How does Small Sam have any idea what Big Boy knows about Fido’s activities?  If Fido has not been reported to government officials or has not done anything in view of the neighbors, then Small Sam will be hard pressed to present any evidence of the nature of Fido.  One attorney sought to get around this dilemma by asking a court to take judicial notice of the fact that all German Shepards are vicious dogs, but the court refused to do so. [xvi]   If an owner has knowledge that her cat has bitten children before and that it was suffering from a disease that makes the cat extra sensitive, then a prima facie case has been made that the cat was dangerous, posing more than the normal risk of harm from cats. [xvii]

 

How much notice is required to trigger the legal liability?  One court noted that there should be an incident or incidents which would put a prudent man or woman on notice to anticipate the event which occurred.  A single incident may not adequately place a person on notice.  The test should be whether the one incident was of such nature as to cause a reasonably prudent person to believe that the animal was sufficiently dangerous as to be likely to cause an injury at a later time. [xviii]  Knowledge or notice that dog has behaved ferociously toward other animals, or has engaged in dog fights is not necessarily notice that it will attack human beings. [xix]  Evidence of dogs fighting dogs has been rejected in several more recent cases. [xx]  For the most part, prior incidents between the animal and people are the best source of evidence concerning an animal's propensity. [xxi]  But, keep in mind that knowledge that a horse has thrown rider does not show propensity to kick. [xxii]

 

This is where an animal behaviorist expert may become involved.  A key issue in many cases concerns the expected behavior of an animal in a given fact pattern.  Is a particular reaction or injury within the normal pattern of behavior, and therefore an acceptable risk or does it constitute an unusual, unpredictable behavior that is not within the normal risk of daily life that the law imposes upon everyone? 

 

 

VI. Juries & Going for the Deep Pocket

 

There is a special dynamic when injury cases, particularly dog bite cases go to the jury.  It often seems like the jury (and sometimes, judges) believe that someone should pay for the injury, for the human pain and suffering.  If the owner does not have money than they will reach out and touch someone else, usually a landowner or landlord who would be expected to have insurance to cover the losses.  In one case, two men got into a physical fight in the home of the defendant and the defendant’s dog bit the plaintiff.  The jury returned a judgment for $100,000 but the judge set it aside saying that there was no evidence of negligence.  This was upheld on appeal but the dissent believed that the dog’s barking during the verbal dispute, prior to the physical events, was sufficient notice that the dog might bite and would have found a duty and violation. [xxiii]  Dogs bark all the time for many reasons to convey many different messages, but the jury believed that someone should pay for the injury and used the barking of the dog as a slender reed upon which to support legal and financial liability.

 

In another case a landlord of a trailer park was found liable for a $50,000 judgment by a jury for a dog injury and the judge reversed the judgment. [xxiv]  In this case, the appeals court reversed the judge, holding that the jury could have found the landlord had sufficient notice to support liability. [xxv]  The better reasoned position was by the dissent noted:  “Why was there a $ 50,000 verdict against A & V for supposedly having knowledge of Brown's (dog’s owner) dangerous dogs with their vicious propensities, and then, Brown absolved by the jury of any finding of liability? Mongeon (plaintiff) failed to even appeal the verdict in favor of Brown. The proof against Brown was much more substantial than that against A & V. Talk about irreconcilable verdicts! This one is appalling, confusing and indicative of sympathy of the jury in favor of Mongeon as well as the jury going after the deep pockets of the business of the owner instead of the owner of the dogs. Also, less we forget, Brown was proceeding pro se.” (To read more about landlord tenant liability, see the Topic Area.)

 

Another aspect of the deep pocket is that sometimes conflicts arise about which deep pocket might be liable.  This is a particular problem when the dog bite occurred around an auto or truck and then there is both auto insurance and home owners insurance that may be liable.  In one case a plaintiff was bitten by a dog when walking around the back of pickup.  $55,000 in damages were awarded.  The issue on appeal concerned the issue of which insurance policy, auto or homeowners, should cover this type of incident. The court adopted the nexus test; the auto insurance is liable if the injury arises out of the operation of a vehicle. The Court held :  “We are satisfied that automobile liability insurance should cover this injury caused by a dog bite to the face occurring while the dog was in the open rear deck of a pickup truck because it arose out of the use of the vehicle to transport the dog. Moreover, the bite incident was facilitated by the height and open design of the deck. In our view the act was a natural and foreseeable consequence of the use of the vehicle, and there was a substantial nexus between the dog bite and the use of the vehicle at the time the dog bit the plaintiff.” [xxvi]  This opinion contains an excellent summary of the auto/dog bite /insurance cases.

 

 

VII. Liabilities of an Owner/Keeper

 

1.  Strict Liability Based on Vicious Propensity

 

At common law, a lawsuit could be based upon strict liability if the injured party could prove that the dog was vicious and that the owner knew it (this might also be considered as a presumption of negligence). [xxvii]   This is important option for the injured party as it is often easier to prove the prior knowledge of the character of the animal than that the owner was negligent in the particular facts which resulted in the injury in question. What constitutes vicious propensity was discussed infra.  The other key element is that the owner must have knowledge of the dog’s characteristics in question.  Additionally, it must be shown that this characteristic is what caused the harm.  Thus, if an owner knows that a dog is liable to jump up on people, but the injury in question was caused by a human tripping over the dog while it was sleeping, then the owner is not liable under this concept.  Even thought the owner had prior knowledge of a characteristic that may cause human injury, that characteristic did not cause this injury. [xxviii]  Where a cat had on two prior occasions bitten children, even though the owner said the children provoked the cat, the question of the owner’s knowledge of vicious propensity and hence legal liability should go to the jury. [xxix]

 

The usual defense of the owner of the animal is that they did not know of the animal’s vicious propensity.  As it is impossible for the court or a jury to know with certainty what was or was not within one person’s mind, the legal standard is not subjective but objective.  Thus, the legal test is what the owner knew or should have known or understood from prior events.

 

When a reasonable owner would know of the likelihood of a dog's tendency to harm, whether by biting, scratching, or jumping, the plaintiff should not be obliged to prove actual knowledge.  If an owner has been warned of the threat posed by his dog, it should not be necessary to prove that the owner had actual knowledge that the dog had, in fact, harmed another.  A dog is not necessarily entitled to its first bite. [xxx]

 

The knowledge in question normally has to be from observation of the specific animal in question. When a German Shepard was the dog in question, the Court refused the plaintiff’s request “to take judicial notice of the supposed fact that German shepherd dogs are, as a breed, vicious.” [xxxi]  Another court refused to find knowledge from the name of the dog - Thunder. [xxxii]  It is the additional element of forseeability of the injury given the knowledge of the nature of the animal that is necessary to win a lawsuit. 

 

Strict liability will apply not withstanding the negligence of third parties or Acts of God.  If a possessor knows an animal is dangerous, and has it tied up and a child lets it loose for play and the dog attacks another child, the possessor is liable.  The same is true if an act of nature releases the animal from confinement. [xxxiii]  The one exception to strict liability is when the injured party is an intentional or negligent trespasser.

 

Some states have transformed the common law rules into statutory rules.  For example the Georgia Code states:

 

§ 51-2-7.  Liability of owner or keeper of vicious or dangerous animal for injuries caused by animal.   A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.

 

The cases decided under this code section have the familiar ring of the common law analysis. [xxxiv]   (Click here for a summary of states that have strict liability statutes.)

 

2.  Negligence (other than Vicious Propensity)

 

When there is no wrongful trespass and no proof of vicious propensity, the owner may nevertheless be liable if it can be shown that he or she had intentionally caused the animal to do harm, [xxxv] or if he or she negligently failed to prevent the harm. [xxxvi]   Negligence arising out of responsibility for an animal is merely an example of the classic garden-variety tort where the plaintiff must prove:

  1. that the defendant owed the injured party a duty;
  2. that the duty was negligently breached; and
  3. that the party suffered damages proximately caused by the defendant's breach of duty. [xxxvii]

Since several other books exist which explain in great detail all the intricacies of general tort law, [xxxviii] this and subsequent sections will only outline the concepts within the context of recently decided animal cases.  Some of the possible claims of negligence include a failure to adequately confine, a failure to control, and a failure to warn.  This type of claim arises most often when there is no evidence of vicious propensity and the injured party is seeking another basis for legal relief.  These claims all relate back to the owner’s knowledge of the animal at question.  That is, there is an extra duty toward others if the owner has specific knowledge of an unusual risk.  A 1994 California case sought damages for lyme disease which the plaintiff claimed was a result of ticks which came off the defendant’s dog.  The court held that the defendant did not have a duty to protect others against liable for general risk of insect bites even if a dog was the vector. [xxxix]  Another case found no duty and therefore no negligence where a two dogs knocked someone over while engaging in normal play. [xl]

 

An interesting and detailed discussion of the general concepts of negligence deals with the duty a landowner landlord created when he took upon himself to control a dangerous dog found on his property.  The Court found that because the landlord decided to act, he created a duty that otherwise would not have been present and then held that he was negligent in carrying out the duty. This was a close case and there is a strong dissent. [xli]         

 

Negligent failure to secure an animal. 

 

One difficult issue is whether the owner or keeper of an animal should restrain the animal.  With dogs it is generally presumed that restraint is not required (unlike tigers for example).  However in some circumstances a duty to restrain may arise.

 

[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. [xlii]

 

In Newport v. Moran, [xliii] defendant’s dog was roaming the neighborhood and knocked over plaintiff.  There was no suggestion that this was a dangerous dog.  Therefore the plaintiff had to assert another form of negligence.  In a common law negligence action, the plaintiff must show that there was a duty to restrain based upon some prior knowledge the dog in question posed a risk of this type of injury.  In this case, the plaintiff had no evidence to suggest the owner had any prior knowledge of the dog knocking over people, that a dog is playful and friendly alone is not notice for a dangerous trait.  “Without some reason to foresee that he was likely to run into people, there was no common law duty to confine the dog, and the issue should not have been presented to the jury.”

 

Another case came to an opposite conclusion.  The facts as set out by court are:

 

Defendants owned a two-year-old dog, a mixed golden retriever and springer spaniel, gold in color and weighing between 80 and 90 pounds. Prior to the accident they had knowledge that the dog could and would escape from the back yard of their house by jumping over the gate and had observed their dog chasing cars on several occasions. There was no evidence that the dog had been observed chasing motorcycles or bicycles. After defendants were advised by a city dog catcher that they should keep their dog tied up, they developed the habit of tying the animal up in the back yard. [xliv]

 

The owners knew that their dog had a history of escaping and chasing cars.  This gave rise to a duty to control.  When on one day they did not restrain the dog, it escaped and chased a motorcycle, getting in front of the cycle and causing it to tip over. The dog’s owners suggested that it was not foreseeable, that is that since the dog had not previously chases motorcycles, they had no duty toward them.  Quoting from another case the Court noted that:

 

It is generally held, regardless of whether the question of "foreseeability" is treated as a problem of "duty," "negligence," or "proximate cause," that it is not necessary that the defendant might or should have foreseen the likelihood of the particular injury or harm, the extent of the harm, or the manner in which it occurred, but that it is only necessary that he should have anticipated that some injury or harm might result from his conduct.

 

Thus, risk to a motorcyclist was foreseeable and in turn, there was a duty toward the plaintiff to restrain the dog.  If the owner failed in his or her duty, legal liability will arise.  In another case the dog ran out of the front yard and into a motorcycle causing injury. But, in this case, there was no prior knowledge of this tendency and therefore the owner was not considered negligent.  The court refused to adopt a strict liability rule about dogs chasing cars. [xlv]

 

It is generally recognized that many animals, including dogs, display a particular defensiveness when eating.  It was therefore a jury question whether a defendant had negligently failed to properly confine a large dog or otherwise prevent it from attacking a strange minor who was in the area while the dog was eating. [xlvi]

 

Negligent Entrustment of an animal. 

 

In one case, the owners of a dog left their 12 year-old child in charge of the dog.  The child let the dog off the restraining chain to untangle the chain, and, while off the chain, the dog bit a person standing near by. The court held that the claim of negligent entrustment could stand separate from any knowledge of vicious propensity (of which there was none).  “To prove a claim of negligent entrustment, a plaintiff must prove: (1) an entrustment; (2) to an incapacitated person or one who is incapable of using due care; (3) with actual and specific knowledge that the person is incapacitated or incapable of using due care at the time of the entrustment; (4) proximate cause; and, (5) damages.”  The Court upheld a jury verdict for the injured plaintiff in the amount of $28,842. [xlvii]

 

Negligent care, violation of a local ordinance. 

 

Nearly every state empowers local municipalities with some specified power to create ordinances regulating dogs and other animals.  In those states that do not grant this specific power or do not otherwise recognize the power of local units to regulate dogs, courts usually defer to municipalities’ inherent police power as a way to regulate dogs.  (See, Web Center Discussion on Local Regulation of Dogs.)  The issue then arises as to when such an ordinance can provide the legal basis for a cause of action.  The basics of this cause of action were set out in Rickrode v. Wistinghausen: 

 

To make a prima facie case of ordinary negligence, plaintiff need only show that defendant failed to exercise ordinary care under the circumstances to control or restrain.  3 Restatement Torts, 2d, § 518, comment f, p 31.  Although cats are generally permitted to run at large, there are circumstances under which it would be negligent to allow a cat to do so.  3 Restatement Torts, 2d, § 518, comments j and k, p 32.  In this case, plaintiff alleged that defendant violated a city ordinance requiring cats to be kept confined or leashed.  Such a violation, if proved, is evidence of negligence.  340 NW2d 83 (MI 1983).

 

Negligent Infliction of Emotional Distress. 

 

In a Connecticut case the parents of a child witnessed a dog attack and injure their child.  Besides the claim for the injury to the child, the trial court also allowed a cause of action on behalf of the parents who witnessed the attack.  The court adopted the ruling of a California case as to the elements for recovery in an action based upon bystander emotional distress: "damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness." [xlviii]  Thus, the court allowed a cause of action based upon negligent infliction of emotional distress. [xlix]  This cause of action is not available in all states and therefore state law should be consulted.  (For a discussion on emotional damages for injury to a pet, click here.) 

 

Negligent failure to warn. 

 

A duty to warn will not exist unless the owner of the animal has knowledge of a risk posed by other than the ordinary.  Without the knowledge there can be no duty, without a duty there is no negligence. 

 

Sometimes the plaintiff seeks to characterize a set of facts a justifying a presumption of negligence. But this is difficult.  The fact may simply involve an unforeseeable accident for which no one was liable.

 

 

VIII. Statutory liability - State Law

The legislatures of many states have changed the common law balance of risk when it comes to the specific topic of dog bites and dog caused injuries.  There are three basis varieties of legislative strict liability laws.  One focuses specifically on injuries caused by dog bites while another on other injuries in general caused by dogs. A third category is normally referred to as a “Dangerous Dog” law and relate primarily to the power of the state to confiscate and destroy dogs that have engaged in inappropriate conduct and hold owners criminally liable for violations.  Sometimes such statutes also allow for relief for individuals harmed by dogs so identified by the state.  For example in Maine, “if a dog, whose owner or keeper refuses or neglects to comply with the order [to confine a dangerous dog], wounds any person by a sudden assault or wounds or kills any domestic animal, the owner or keeper shall pay the person injured treble damages and costs to be recovered by a civil action. [l] 

 

One state is of a split mind, or believes the balance of interest depend upon where the dog is located.  In Oklahoma, the strict liability rule applies in cities and towns, but not in the countryside.  It is not clear whether this difference is a result of the dogs being different, the human’s awareness of dogs being different or the value of the dogs to the humans being different in the urban verse rural location. [li]

 

New Jersey adopted a narrower strict liability dog bite statute:

 

The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of the dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.  For the purpose of this section, a person is lawfully upon the private property of such owner when he is on the property in the performance of any duty imposed upon him by the laws of this state or the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner thereof. [lii] (Emphasis added.)

 

This New Jersey statute is discussed in the case of DeRobertis v. Randazzo, infra. [liii]

 

Note the following elements within the statute:

  • The statute applies only to dog bites. No other animals and no other types of dog injury such as tripping, jumping, or being mauled, trigger the liability.
  • The owner is liable. This is apparently the case even if the owner was not the immediate possessor.  It is not clear if a person who is not the owner but does has custody of the dog may be liable.
  • Any person bitten can recover if they are lawfully present at the place where the dog bit occurs.
  • Defenses such as provocation or contributory negligence may be available even though not specifically allowed in the statute. [liv]

 Michigan also has the narrow version statute. [lv] 

 

Ohio has an example of the broader statute:

 

The owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, keeper, or harborer, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog on the owner's, keeper's, or harborer's property. [lvi] (Emphasis added.)

 

The critical points of this statute include: 

  • Relief is available for “any person.” [lvii]   
  • Covers “damage.”  This is a broader term, including harm to property as well as the person, but most likely does not include emotional harm. [lviii]
  • Can recover against owner, keeper and harborer [lix] of dogs.
  • List of individuals not obtaining the protection of the statute.

Other states with a broader application include New Hampshire and Nebraska. [lx] 

 

In a New Jersey case, a five-year-old plaintiff was bitten by a chained up dog at the back of the defendant’s business premises.  Plaintiff had initially been brought to the premises by his father, who left him to be watched by others. While there is no doubt the defendant’s dog bit plaintiff, there was a jury question as to whether the child was a trespasser where the bite occurred, and the court ponders further, can a child under seven be a trespasser?  With respect to more innocent trespassers like young children, as well as those lawfully on the property, the Court allowed that contributory negligence may still bar recovery to the statutory cause of action.

 

In a New Hampshire case, the injury was occasioned by a small white dog running toward a person on a bike, where the person lost balance and fell, causing significant injury even thought the dog never touched the individual. [lxi]  The court found a possible violation of the statute saying of the injured party.  “The plaintiff did not rely on the "mere presence" of the dog; he alleged specific mischievous actions by the animal that were causally related to his injuries.” 

 

One fact pattern has resulted in different outcomes in different states.  The question is whether an individual who works at a kennel is a “person” under the strict liability statues, and is thus able to recover for dog bites obtained when working with dogs. In a 1993 Oklahoma case, the court found that the strict liability statute did apply where owner left a dog with commercial kennel and a handler was bitten.  The court used a very narrow definition of owner, and the dissent has the better reasoned opinion [lxii].  An Ohio opinion reached the opposite result on almost the same facts. [lxiii]  As a point of policy it does not seem fair to place tort liability on an absent owner when the injured party is a commercial handler of animals and owner did not fail to disclose an unusual risk. This is particularly the case when it will normally be impossible to know whether there has been provocation by the human of the animal.

 

 

IX. Defenses for Owner

 

Any claim based upon tort concepts has the potential of being denied by courts based upon the conduct of the injured party.  If it can be shown that just before a dog bite occurred the injured party hit the dog with a shovel, or kicked the dog, then the owner should not be liable since the injured party initiated the incident.  In each state, the availability of tort defenses differs and most of the differences do not relate to the fact that animals are part of the issue.  Some of the terms that come up in this area include: contributory negligence, [lxiv] comparative negligence, [lxv] assumption of risk, [lxvi] and wilful provocation. [lxvii]  An extensive collection of the cases can be found at 11 ALR5th 127, “Intentional Provocation, Contributory or Comparative Negligence, or Assumption of Risk as Defense To Action For Injury By Dog” by Jay Zitter.  This discussion seeks to explore just a few of these related issues.

 

A Montana case is illustrative of both the issue of provocation and contributory negligence. [lxviii]  Plaintiff was bitten by defendant’s dog while talking over a fence.  While leaning against the fence, the plaintiff had his arm and hand over the edge of the fence extending into the defendant’s yard.  The defendant’s dog jumped up once and missed and then when plaintiff resumed this posture the dog jumped a second time and bit the plaintiff.  Montana has a strict liability statute.  After noting that there was a split of authority as to whether the defense of contributory negligence should be available for violation of strict liability statute, the court decided it will not be available in Montana. [lxix] In seeking to use the defense of provocation, the dog owner claimed the plaintiff provoked the dog in two different ways.  First, he argued that several weeks earlier the plaintiff, who is a neighbor, had chased the dog out of his yard with a metal pole.  The court held:

 

We do not dispute the Days' claim that a dog is capable of remembering specific instances from its past. We nevertheless conclude, as a matter of law, that Stroop's act of chasing Stogie with a fence post four to six weeks prior to being bitten was not provocation under § 27-1-715, MCA. An incident so remote in time cannot be considered provocation under the terms of this statute.

 

The second claim of the dog’s owner was that the extending of his hands and forearms over the defendants fence and into the dogs “turf” constituted provocation.

 

[E]xtending his hands and forearms into the Days' property was not provocation. There was no testimony that Stroop thrust his hands toward the dog or made any quick or threatening gestures. Stroop's hands were lawfully on the Days' property. Mere presence on the property of another does not amount to provocation. Conduct such as Stroop resting his arms on the fence and allowing his hands and forearms to dangle over the Days' property cannot be considered provocation under any reasonable interpretation of that term.

 

One area of conflict is whether contributory negligence can be a defense if the defendant is strictly liable for the animal’s actions.  Under the provisions of the Rest. § 515, contributory negligence is not a defense to strict liability.  However, if plaintiff knowingly and unreasonably subjects himself to the risk of a wild animal or an abnormally dangerous domestic animal, a defense is available. [lxx]  For example, if a person voluntarily enters a boxing ring to wrestle a bear, that person cannot later hold the owner strictly liable for an injury inflicted by the bear.  One court dealt with the issue of whether an owner of a vicious dog would be strictly liable if the injured party is a trespasser:

 

Although owners of known vicious dogs should be absolutely liable even to trespassers, the conduct of the victim remains relevant to the determination of liability.  Not all trespassers are alike; "trespasser" includes both the burglar and the uninvited infant.  In analyzing the relative rights of the dog owner and the "trespasser," we believe it is important to look beneath the label and at the realities of their relationship.  Some trespassers, such as those who enter premises for criminal purposes, ordinarily should have no claim upon an owner. With respect to more innocent trespassers, as well as those lawfully on the property, contributory negligence may still bar recovery. [lxxi]

 

Assumption of risk is also available as a defense in some states.  If the injured party is an employee in a job that involves working with animals (a veterinarian) and is injured while doing there job, assumption of risk may bar recovery against the animal’s owner. [lxxii]  In one case, the owner remained liable for the attack on a veterinary employee where the employee had not yet taken physical control of the animal and therefore had not assumed the risk. [lxxiii]

 

The defense of assumption of the risk presupposes (1) that the plaintiff had some actual knowledge of the danger; (2) that he understood and appreciated the risk therefrom[;] and (3) that he voluntarily exposed himself to such risk. [lxxiv]

           

Coming to the emergency aid of an injured dog is not an assumption of risk. [lxxv]  The central issue remains whether there was the assumption of risk.

 


 



[i].  The San Diego Union-Tribune July 14, 1996, Personal Finance Section.  The author is among these numbers.  While jogging on a public sidewalk a neighbor’s dog looped around behind me and without a sound bit me in the leg sufficiently hard to draw blood.  This necessitated a trip to an emergency room and the obtaining of a tetanus shot. There was a financial settlement with the home owner’s insurance company for a modest amount of money without any legal action being initiated.

[ii].  Sacks, Sattin, & Bonzo, Dog Bite-Related Fatalities From 1979 Through 1988, 262 J.A.M.A. 1489 (1989).

[iii].  Personal Injury Verdict Reviews, March 3, 1997, p.1.

[iv].  Roland v. LeBlanc, No. 93-312-SD (D.N.H. June 10, 1996). Reported in Trial Oct. 1996 at p. 83.

[v].  Personal Injury Verdict Reviews, March 3, 1997, p.1.  Portillo v. Aiassa, 27 Cal App 4th 1128, 1994 Cal App LEXIS 870.  Plaintiff delivered beer to Race Street Liquors. As he was leaving the store, he was attacked by a German shepherd dog owned by the tenant. The jury awarded damages in the amount of $ 300,000 plus costs to respondent.  (The jury awarded $65,000 for economic damages for which both Mr. Kim and appellant were jointly and severally liable. They also awarded $ 235,000 for noneconomic damages of which each was liable for $117,500. Respondent's costs were $ 4,835.87.)

[vi].  Shively v. Dye Creek Cattle Co., 29 Cal App4th 1620, 1994 Cal App LEXIS 1130.

The first principle explains that "[i]n considering whether one owes another a duty of care, several factors must be weighed, including: ' " '[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

[vii].  Taft v. Taft, 209 Ga App 499, 433 SE2d 667 (1993).

[viii].  DeRobertis v. Randazzo, 462 A2d 1260 (NJ 1983).

[ix].  DeVaul v. Carvigo Inc., 526 NYS2d 483, 1988 NY App Div LEXIS 3250.

[x].  Boosman v. Moudy, 488 SW2d 917, 920, (MO 1972); Restatement (Second) of Torts, § 509 Comment (c) (1977); see also, Royer v. Pryor, 427 NE2d 1112 (IN 1981).

[xi].  Nava v. McMillan, 123 Cal App 3d 262, 1981 Cal App LEXIS 2110. “Here, the dogs did not jump over the fence of the premises at which they were kept; they remained behind it, never touching plaintiff.  It is an integral part of our whole system of private property that an owner or occupier of land has a privilege to use the land according to his own desires.  The possessor thus has a duty to make only a reasonable use of his property, without causing unreasonable risk of harm to others in the vicinity.  The measure of care with respect to animals is the same. In this particular instance, defendants could not reasonably foresee that the mere appearance of the dogs at the fence or their barking might cause plaintiff, who was on the public side of the fence, to become frightened and to run into the street where she was subsequently struck by an automobile.”

[xii].  Florice v. Brown, 679 So 2d 501, 1996 La App LEXIS 1656.

[xiii].  One court illogically reasoned that the injury to the plaintiff was notice of the dog’s propensity.  No other court has adopted this approach.  In effect it eliminates the concept of notice.  Layman v. Atwood, 370 NE2d 933 (IN 1977).

[xiv].  Westberry v. Blackwell, 282 OR 129, 577 P2d 75 (1977).  The court found the previous biting, which had occurred only one hour before, was sufficient to constitute evidence of a vicious propensity.  Since the owner saw it happen, she was on notice of that propensity and therefore liable to the plaintiff.  See also, Parsons v. Ponder, 288 SE2d 751 (GA 1982) (court allowed punitive damages against dog owner).

[xv].  Bossman, supra note ; Fowler v. Helck, 278 KY 361, 128 SW2d 564 (1939) (contains extensive discussion of one-bite argument).

[xvi].   “We also reject the plaintiffs' argument that the trial court erred in refusing to take judicial notice of the supposed fact that German shepherd dogs are, as a breed, vicious.” DeVaul v. Carvigo Inc., 526 NYS2d 483, 1988 NY App Div LEXIS 3250. But see, Hampton v. Hammons, 743 P2d 1053 (OK 1987) where Court would allow consideration of the fact that pit bulls as a breed may be vicious per se.

[xvii].  Rickrode v. Wistinghausen, 340 NW2d 83 (MI 1983).

[xviii].  Sutton v. Sutton, 145 Ga App 22, 243 SE2d 310 (1978).

[xix].  Carter v. Ide, 125 GA App 557, 188 SE2d 275 (1972); Banks v. Adair, 148 Ga App 254, 251 SE2d 88(1978).

[xx].  Banks v. Adair, 251 SE2d 88 (GA 1978); Eason v. Miller, 265 SE2d 340 (GA 1980) (Great Dane).

[xxi].  See generally, 13 P.O.F.2d (AmJur) 473, Knowledge of Animals Vicious Propensities (1977).  Some courts also allow conduct subsequent to the injury to be used for proof of vicious propensity.  Hamby v. Haskins, 630 SW2d 37 (AR 1982).

[xxii]. Carter v. Ide, 125 GA App 557, 188 SE2d 275 (1972).

[xxiii].  Kadechka v. Dembouski, 1995 Minn App LEXIS 538.  Rottweiler dog bit the plaintiff.  Immediately prior to the bite the Plaintiff and Defendant had a fight in defendant's home. The jury returned a judgment for $100,000 based on negligence. The trial court judge set aside the judgment by granting a judgment NOV.  This dismissal of the plaintiff’s case was upheld on appeal.

[xxiv].  Mongeon v. A & V Enterprises,  1997 Miss LEXIS 319.  Plaintiff was bitten by tenant’s black Labrador while walking through a common’s area of the defendant’s trailer park.

[xxv].  The issue on appeal was whether or not defendant landlord had prior knowledge of the vicious propensity of tenant’s dog.  One tenant testified that she complained to the manager that a dog had growled at her, but could not identify the dogs in question.  “A reasonable jury could have found that the incident in which Brown's dogs growled at Donna Nelson near the washateria constituted an exhibition of a dangerous or vicious propensity by Brian Brown's black Labrador retrievers. Considering the evidence in the light most favorable to Mongeon, there is credible evidence from which the jury may have drawn a reasonable inference supporting its verdict.” Mongeon v. A & V Enterprises,  1997 Miss LEXIS 319.

[xxvi].  Diehl v. Cumberland Mutual Fire Insurance Co., 686 A2d 785, 1997 NJ Super LEXIS 13.

[xxvii].  DeRobertis v. Randazzo, 462 A2d 1260 (NJ 1983). “Our holding that owners with scienter are subject to absolute liability is consistent with the majority rule in other jurisdictions.  See, e.g., Jones v. Manhart, 120 Ariz. 338, 585 P.2d 1250 (1978) (imposing absolute liability when licensee was bitten by a dog); Strange v. Stovall, 261 AR 53, 546 S.W.2d 421 (1977) (absolute liability imposed, but defense of comparative negligence allowed); Swerdfeger v. Krueger, 145 CO 180, 358 P.2d 479 (1961) (absolute liability allowed with defense of contributory negligence where infant trespasser was bitten by defendant's dog); Arnold v. Laird, 94 WA2d 867, 621 P.2d 138 (1980) (calling for absolute liability with no defense of contributory negligence); Annot., 64 A.L.R.3d 1039 (1975); Restatement (Second) of Torts § 514 (1977) (imposing absolute liability unless the victim is a trespasser). Some jurisdictions, however, hold the owner liable only if he has been negligent.  See, e.g., Radoff v. Hunter, 158 CAApp.2d 770, 323 P.2d 202 (1958); Bramble v. Thompson, 264 Md. 518, 287 A.2d 265 (1972).”

            Also see, DeVaul v. Carvigo Inc., 526 NYS2d 483, 1988 NY App Div LEXIS 3250.

[xxviii].  Restatement (Second) of Torts § 509 (1977).  Kadechka v. Dembouski, 1995 Minn App LEXIS 538. “Duty is determined by foreseeability because a person is required to guard against only those consequences that can be reasonably anticipated in the normal course of events.”

[xxix].  Rickrode v. Wistinghausen, 340 NW2d 83 (MI 1983). 

[xxx].  DeRobertis v. Randazzo, 462 A2d 1260 (NJ 1983).  Macho v. Mahowald, 374 NW2d 312, 314 (MN App. 1985) (liability for injuries caused by animal when notice of such propensities would put a reasonable person on guard).

[xxxi].  DeVaul v. Carvigo Inc., 526 NYS2d 483, 1988 NY App Div LEXIS 3250.  Lundy v. California Realty,170 Cal App 3d 813, 1985 Cal App LEXIS 2280.

[xxxii].  Lundy v. California Realty,170 Cal App 3d 813, 1985 Cal App LEXIS 2280.  “Nor can defendants' knowledge of any dangerous propensity of the dog be inferred simply because they knew his name was Thunder.  It is not uncommon for an owner of a St. Bernard or Great Dane to name the dog Tiny.”

[xxxiii].  Restatement (Second) of Torts § 510 (1977).

[xxxiv].  See Rowlette v. Paul, 466 SE2d 37, 1995 Ga App LEXIS 1107. In the absence of any evidence showing that the owners of a dog had knowledge, prior to a mauling incident, that their dog had ever bitten another human being, the owners of the dog were not liable to the victim even though the dog's presence on the premises where the incident occurred was in violation of the county leash law. Brown v. Pierce, 176 GA App. 787, 338 SE2d 39 (1985). The size of a dog, its breed, and the fact that its owner keeps it restrained, does not establish any inference that the owner knows the dog to be dangerous. Freeman v. Farr, 184 GA App. 830, 363 SE2d 48 (1987).  It is not enough for liability under this section that the possessor of the animal know of a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts, Carter v. Ide, 125 GA App. 557, 188 SE2d 275 (1972).  While this section does not set out how knowledge of the vicious nature of the animal may be acquired, under the common law this knowledge is presumed to exist when the animal involved belongs to a certain class of animals ferae naturae, such as lions, tigers, bears, wolves, baboons, apes, and monkeys, etc. Candler v. Smith, 50 GA App. 667, 179 SE 395 (1935).

[xxxv].  In one case the dissent found an intentional act that would have justified not just normal damages but punitive damages as well. Rowlette v. Paul, 466 SE2d 37, 1995 Ga App LEXIS 1107. “In the case sub judice, the evidence would authorize a conclusion by the jury that the dog was deliberately set on plaintiff Denise W. Rowlette as she was conducting the county's business of revaluing real property for taxation and further that nothing was done to stop the attack, with defendant lamely saying ‘We can't handle the dog.’ This is evidence of that callous and conscious indifference to the consequences that will support an award of punitive damages, should the jury find them to be appropriate in this case.”

[xxxvi].  Restatement (Second) of Torts § 518 (1977).  Newport v. Moran, 721 P2d 465 (Or 1986). Drake v. Dean, 15 Cal App4th 915, 1993 Cal App LEXIS 496.  An individual was injured by being knocked over by a dog. The complaint alleges two counts sounding respectively in strict liability and negligence.  A jury returned a verdict in favor of defendants.  On appeal, plaintiff contends the trial court erred in admitting certain evidence and in refusing to give certain instructions, including the standard instructions on negligence. Court agreed that negligence was a separate action from strict liability and does not require the showing of a dangerous propensity.

[xxxvii].  Giles v. State, 431 NYS2d 781 (1980); Arnold v. Laird, 94 Wash2d 867, 621 P2d 138 (WA 1980).

[xxxviii].  See generally,  Prosser and Keeton, The Law of Torts (1984).

[xxxix].  Butcher v. Gay, 29 Cal App 4th 388, 1994 Cal App LEXIS 1052. Plaintiff alleged that she had contracted Lyme disease "as a result of exposure to infested ticks" on respondent's property, and that respondent had "failed to spray the area, post signs or prevented [sic] domestic dog(s) from coming into contact with the plaintiff - jumping in her lap - thereby exposing her to a vector of the disease without her knowledge.... In a negligence case the existence and scope of a defendant's duty is a legal question to be decided by the court. It is not a factual question to be decided by the trier of fact....A duty does not generally arise in the context of negligence unless there is some awareness of a danger and some responsibility for it. Insects are a part of life's burdens and it is reasonable to conclude a person cannot be held responsible for their existence. Where one has not fostered an environment designed to cultivate such predators they are simply part of the inherent risks of living. However, where one was aware, or reasonably should have been aware, that an animal he or she was responsible for created a risk of harm as a result of infestation by a dangerous insect, then arguably, failure to act might result in liability for harm.”  Court found no duty toward the plaintiff and allow the motion for summary judgment against the plaintiff to stand.

[xl].  Hagen v. Laursen, 121 Cal App 2d 379, 263 P2d 489 (1953).  Two Irish setters knocked down a neighbor while playing outside.  Previously no one had seen them run into anyone while playing.  They were not shown to have been more boisterous than dogs usually are.  There was no evidence that these dogs were vicious. The court found that there was no foreseeable risk of harm and therefore no duty upon which to base a claim of negligence.

[xli].  Wright v. Schum,  781 P2d 1142, 1989 Nev LEXIS 279.  Boy was bitten by dog, jury found the owner liable, but trial court judge dismissed the landlord as a defendant.  Plaintiff sought to hold the landlord liable on two grounds, first that landlord’s liability should extend to off premises injuries and second that the landlord with the power to evict the tenant should have done so and having not done so is now liable.  “The trial court, in dismissing landlord Schum from the lawsuit, wisely observed that holding landlords liable for the actions of their tenants' vicious dogs by requiring them to evict tenants with dangerous dogs would merely result in the tenants' moving off to another location with their still dangerous animals.  The trial judge likened this approach to the case of a "Typhoid Mary," who was outcast from one place only to continue her deadly disease-spreading activity at another place.  In Nevada, Schum's failure to evict a tenant known to him to be harboring a dangerous pit bulldog will not alone provide grounds, as it did in the above-cited Uccello case, for holding a landlord tortiously liable for attacks by a tenant's dog.”  However, the landlord in this case will be liable nevertheless under general tort obligations in that he undertook a duty to secure the neighbor from harm by the dog and failed to achieve the desired result, resulting in the injury to plaintiff.

[xlii].  Trager v. Thor, 516 NW2d 69, 1994 Mich LEXIS 888.  Father of the dog’s owner visited the son’s home. He agreed to supervise the dog and grandkids while his son and daughter-in-law went shopping.  Neighbor’s child was bitten by dog, which had been put by defendant into bedroom. The court held that the defendant could not be held to the strict liability standard of an owner keeper, but could be liable under theory of negligence.

[xliii].  721 P2d 465 (Or 1986).

[xliv].  Endresen v. Allen, 574 P2d 1219 (WY 1978).

 

[xlv].  Williams v. Hill, 658 So 2d 381, 1995 Ala LEXIS 104.  Defendant’s golden retriever ran out into the public road where it caused an accident with a motorcycle injuring the plaintiff.  The Court held that there is no recover at common law, as no negligence was shown. The Court would not accept the proposal that all owners should be charged with the knowledge that dogs will chase cars.  “We hold that the owner of a dog may not be charged with the general knowledge that all dogs chase motor vehicles, and therefore that the law will not impute such general knowledge to dog owners in actions for injuries incurred. We, therefore, affirm the defendant's summary judgment.”

[xlvi].  Medlyn, supra note .

[xlvii].  Hardsaw v. Courtney, 665 NE2d 603, 1996 Ind App LEXIS 713.  Action based upon negligent entrustment of a dangerous instrument. Jury award for plaintiff was in the amount of $28,000 (bites to arm and leg). It was a jury question of whether or not daughter was incapable of using due care. “We agree with the Hardsaws that aside from occasional barking and growling, there was no evidence that Buster had exhibited viciousness in the past. Nevertheless, we conclude that even absent a known vicious propensity, a dog is an instrumentality which may become a source of danger to others when entrusted to a young child who lacks age, judgment, and experience. Whether an owner's entrustment of the control and restraint of a dog to a child was reasonable under the circumstances is a question for the jury.”

[xlviii].  Thing v. La Chusa, 48 Cal3d 644, 771 P2d 814 (1989).

[xlix].  Pastore v. Mancini, 1995 Conn Super LEXIS 2904. “A cause of action for negligent infliction of emotional distress was first recognized by the Connecticut Supreme Court in Montinieri v. Southern New England Telephone Co., 175 CT 337, 398 A2d 1180 (1978). Negligent infliction of emotional distress is applicable when "a defendant should have realized that his conduct involved an unreasonable risk of causing the distress, and from the facts known to him, should have realized that the distress, if it were caused, might result in illness or bodily harm." Id., 341. In addition, contrary to intentional infliction of emotional distress, "recovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." Id., 345. Therefore, the emotional distress "must be reasonable in light of the conduct of the defendants." Barrett v. Danbury Hospital, 232 CT 242, 261, 654 A2d 748 (1995)”.  Also allowed in Katsaris v. Cook, 180 Cal App 3d 256, 1986 Cal App LEXIS 1503.

 

[li].  4 O.S. 1991 § 42.1 (Since amended - effective Feb. 1, 1992), reads as follows:

Personal injury by dog - Liability of owner: The owner or owners of any dog shall be liable for damages to the full amount of any damages sustained when his dog, without provocation, bites or injures any person while such person is in or on a place where he has a lawful right to be.

 

            Therefore, generally, one who chooses to own a dog should be responsible for unprovoked attacks of the animal.  It must be remembered, however, that Title 4 O.S. 1991 § 42.3 provides that the act does not apply to rural areas of the State or to cities or towns that do not have city or village U.S. Mail service.

[lii].  N.J.S.A. 4:19-16. Also see, Cal Civ. Code §3342.  Nearly identical language has been adopted in Montana, Section 27-1-715, MCA, except that the Montana statute has the qualifying phrase “without provocation.”

[liv].  But see, Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So2d 21, 1978 Fla LEXIS 4771.  “In sum, we find that a dog owner who is brought to trial pursuant to Section 767.04, Florida Statutes (1975), has available to him only the defenses expressed in the statute.  To the extent that earlier decisions of the District Courts of Appeal express or imply the existence of a separate defense predicated upon assumption of risk, they are hereby overruled.”

[lvii].  An early Ohio case found that such a statute could be the basis for recovery for a servant of the owner of the dog.  Bevin v. Griffiths, 44 Ohio App 94, 184 NE 401(1932).  In Conn. a  Court held that an individual who took custody of a friend’s dog for a week was a keeper of the animal and could not be considered a “person” under the strict liability statute.  Murphy v. Buonato , 42 CT App. 239, 679 A2d 411, 1996 Conn App LEXIS 399. Another case found that a meter reader was a person and not a trespasser. Cretella v. Maebry, 1995 Conn Super LEXIS 1763.

 

[lviii].  Pastore v. Mancini, 1995 Conn Super LEXIS 2904. On a motion to strike, Court disallows a claim based on emotional harm to mother for watching her child be attacked by dog.  Court finds that statue covers only physical harm “to a person’s body.” Court also disallows the count combining the statue and a claim of bystanders emotional distress.

[lix].  Flint v. Holbrook, 608 NE2d 809, 1992 Ohio App LEXIS 2452.  “A harborer is one who has possession and control of the premises where the dog lives, and silently acquiesces to the dog's presence.”  The court holds that the vendor of a land contract does not have control over the premises so as to be considered a harborer of the animal. See additional discussion at Chapter 2, A, 6, supra. 

[lx].  New Hampshire Code states” Any person to whom . . . damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage of the person who owns or keeps the dog . . . ." RSA 466:19. See, Bohan v. Ritzo, 679 A2d 597, 1996 NH LEXIS 73. We have held that the statute makes a dog owner strictly liable for harm caused by a dog's "vicious or mischievous acts."

            The Nebraska statute states: “Dogs are hereby declared to be personal property for all intents and purposes, and the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (1) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs.” R.R.S. Neb. § 54-601 (1997).  This obviously leaves may questions unanswered.

 

[lxi].  See Bohan v. Ritzo supra, note .

[lxii].   Hass v. Money,  849 P2d 1106, 1993 Okla Civ App LEXIS 24.

[lxiii].  Khamis v. Everson, 623 NE2d 683, 1993 Ohio App LEXIS. “Appellant should be held to have been an "owner" within the meaning of §§ 42.1 and 42.2, supra.  She had possession, custody, dominion and control of the dog at all times involved in this case.” (If plaintiff was considered an owner then she could not recover.)  The case has good discussion of prior cases and the issue of who is a keeper.

[lxiv].  For discussion of contributory negligence in relation to a strict liability dog bite statue see Stroop v. Day, 896 P2d 439, 1995 Mont LEXIS 105.

[lxv].  For good discussion of comparative fault see, Bohan v. Ritzo, 679 A2d 597, 1996 NH LEXIS 73.

[lxvi].  California distinguishes between primary and secondary assumption of risk.  Galardi v. Seahorse Riding Club,  16 Cal App4th 817, 1993 Cal App LEXIS 637. “The Supreme Court explained that primary assumption of risk cases are those in which the defendant has no duty to protect the plaintiff from a particular risk.  (Knight v. Jewett, supra, 3 CA4th at p. 308.) In contrast, in instances of secondary assumption of risk, the defendant does owe a duty of care to the plaintiff and has some liability even though "the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty .... The general rule is that coaches and instructors owe a duty of care to their charges.  Thus, a complaint raising the issue of coach or instructor negligence during training involves secondary assumption of risk, which is not a complete bar to recovery and permits a trier of fact to consider comparative fault principles and the relative responsibilities of the parties and to apportion the loss resulting from plaintiff's injury.” (Action deals with fall from a horse by experienced rider under direction of instructor.)  Also see, Tan v. Goddard, 13 Cal App4th 1528, 1993 Cal App LEXIS 209.  Fall from a horse while under instruction. Motion for summary judgment in favor of defendant horse owner reversed.

[lxvii].  In Michigan the court stated that, “only the defenses of wilful provocation or gross negligence by Dawn [the injured party] would preclude recovery.” Rickrode v. Wistinghausen, 340 NW2d 83 (MI 1983).

[lxviii].  Stroop v. Day, 896 P2d 439, 1995 Mont LEXIS 105.

[lxix].  Id.  Stroop v. Day, 896 P2d 439, 1995 Mont LEXIS 105. “There is a clear split of authority concerning whether the defenses of contributory or comparative negligence should be applicable to strict liability dog-bite statutes. Many jurisdictions have determined that defendants are limited to the defenses enumerated in the statutes, namely that the plaintiff provoked the dog or the plaintiff was a trespasser at the time of the incident. See, e.g., Quellos v. Quellos (Ohio Ct. App. 1994), 643 N.E.2d 1173; Massey v. Colaric (Ariz. 1986), 725 P.2d 1099; Seim, 306 N.W.2d at 811-12; Nicholes v. Lorenz (Mich. 1976), 237 N.W.2d 468.

            “However, other jurisdictions have determined that the defenses of contributory negligence, comparative negligence or comparative fault are consistent with their strict liability dog-bite statutes. See, e.g., Hayes v. McFarland (La. Ct. App. 1988), 535 So. 2d 568; Howard v. Allstate Insurance Co. (La. 1988), 520 So. 2d 715; Ambort v. Nowlin (AR 1986), 709 S.W.2d 407; Budai v. Teague (N.J. Super.L. 1986), 515 A.2d 822.”

[lxx].  Franken v. City of Sioux Center, 272 NW2d 422, 1978 Iowa Sup LEXIS 938.  The city owned a tiger which was kept in a small cage.  Plaintiff put his hand into the cage and was bitten by the tiger.  The case has a full discussion of both contributory negligence and assumption of risk as relates to wild animals.

 

[lxxi].   DeRobertis v. Randazzo, 462 A2d 1260 (NJ 1983). The court continued the discussion:

“See Foy v. Dayko, 82 N.J. Super. 8 (App.Div.1964) (holding, before the enactment of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1, that contributory negligence remains a defense under the dog-bite statute); Eberling v. Mutillod, supra,  90 N.J.L. at 482. For example, one who beats or torments a dog has no call upon the owner if, in self-defense, the dog bites back.  Dranow v. Kolmar, 92 N.J.L. at 116-17. However, a child under the age of seven, such as Peter, is rebuttably presumed to be incapable of negligence.  Bush v. N.J. & N.Y. Transit Co., Inc., 30 N.J. 345, 358 (1959).

            “The owner should bear the burden of proving a plaintiff's contributory negligence.  Cf. Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 563 (1980) (holding in a products liability case that the Comparative Negligence Act is applicable to strict liability causes, but requiring defendant to prove plaintiff's "unreasonable and voluntary exposure to a known risk").  Absent such a showing, an owner with scienter is absolutely liable.  Under the comparative negligence statute, N.J.S.A. 2A:15-5.1, if the plaintiff's negligence was the primary cause of the injury, then recovery is barred.  On the other hand, if it is found that his negligence is not greater than the negligence of the combined negligence of the persons against whom recovery is sought, he can recover with an appropriate reduction in the award.  Id.”

[lxxii].  Griffiths v. Schafer, 478 SE2d 625, 1996 Ga App LEXIS 1236.  A veterinary technician sued Arthur Griffiths, the owner of an Akita dog who attacked  while she was attempting to place a collar around the dog.  Court granted a motion for summary judgement. “In Lundy v. Stuhr, 185 GA App. 72, 73 (363 S.E.2d 343), this Court held that a kennel attendant assumed a known risk that a dog "might bite" and thus assumed the risk of a dog bite when opening the animal's cage to retrieve his water bowl.... We affirmed the summary judgment to the dog owner in Lundy, on the basis of the general doctrine of assumption of risk by workers in certain professions: to wit, that ordinarily there is no duty to give warning to the members of a profession against generally known risks in that profession.”

            Cohen v. McIntyre,  16 Cal App 4th 650, 1993 Cal App LEXIS 620.  Plaintiff veterinarian was bitten when a removed a muzzle from a dog after giving it an exam.  Plaintiff claims the defendant failed to warn of its propensity to bit (there were previous events).  “We reaffirm our previous ruling that Cohen's recovery is, as a matter of law, barred by the doctrine of assumption of the risk.”

            Willenberg v. Weule, 185 Cal App 3d 185, 1986 Cal App LEXIS 1999. The point of the Nelson case is that a visit to the veterinarian's office can bring about unpredictable behavior in a normally docile animal, and this is an inherent risk which every veterinarian assumes.

[lxxiii]. Prays v. Perryman, 213 Cal App 3d 1133, 1989 Cal App LEXIS 917.  Plaintiff was bitten by defendant’s dog while discussing whether or not she would accept the dog and groom it - bath etc.  “Plaintiff testified that at the time of the bite she was not grooming the dog and had told defendant she had not yet decided whether it was safe for her to do so.  A trier of fact could find that the beast remained at all times under the exclusive control of defendant dog owner, who had uncaged it and was holding it on a leash.  When defendant brought a growling dog into her shop, plaintiff was not required, to avoid assuming the risk of bloodshed, either to summarily eject the customer or to take flight.”

[lxxiv].  Id.

[lxxv].  Davis v. Gaschler, 11 Cal App 4th 1392, 1992 Cal App LEXIS 1476. While rendering aid to the injured dog the plaintiff was bitten.  Assumption of risk does not apply to this case where the plaintiff came to aid of the dog on the street. “Here, plaintiff was not employed or otherwise compensated for helping injured dogs.  Nor was there an employment relationship or any relationship between plaintiff and defendants.”

 

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