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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 bits 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. (See figure 11-1 for a more comprehensive list.) 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: [insert states and link]
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:
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Was the action of the animal with the category of “dangerous” activities from which the law seeks to protect the general public?
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Had the animal in question shown a previous propensity to engage in this conduct?
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Did the defendant have actual or constructive knowledge of the animal’s propensity?
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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.” (A topic area on Landlord/Tenant issues involving dogs is expected soon at the Web Center.)
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:
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that the defendant owed the injured party a duty;
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that the duty was negligently breached; and
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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 injury 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:
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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.
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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.
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Any person bitten can recover if they are lawfully present at the place where the dog bit occurs.
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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:
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Relief is available for “any person.” | 
