Dog Bite Law

Overview

Oregon follows the ancient and inhumane "one bite rule." (See The One Bite Rule and Legal Rights of Dog Bite Victims in the USA.) In this state, the owner of a dog is strictly liable for injuries caused by the dog only if the owner knows or has reason to know of the animal's dangerous propensities. Kathren v. Olenik, 46 Or.App. 713, 613 P.2d 69 (Or.App. 1980); Westberry v. Blackwell, 282 Or 129, 133, 577 P2d 75 (1978); Chance v. Ringling Bros., 257 Or 319, 478 P2d 613 (1970). "If the owner knows or should have known the dog will bite a person he is charged with a duty to prevent the biting." Kathren, supra at p. 723. "The general rule is that the owner of a dog or other domestic animal is strictly liable for injuries caused by the animal only if the owner knows or has reason to know of the animal's dangerous propensities." Westberry, supra. The court in Westberry referred to the formulation of this rule in the Restatement (Second) of Torts, § 509:

"(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.

"(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know."

Oregon follows the Restatement of Torts in distinguishing between three grounds for liability when a domestic animal injuries a person, those grounds being scienter, intentional injury, and negligence. Section 518 of the Restatement declares, "Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if, (a) he intentionally causes the animal to do the harm, or (b) he is negligent in failing to prevent the harm." Cited in Westberry, supra, at p. 133.

There is no litmus test to determine whether the owner had sufficient information to be legally responsible. "Whether a reasonable person in the exercise of ordinary care would have restrained the dog is properly a question for the jury." Westberry, supra at p. 133. As the court said in Kathren, supra::

The question is whether in the particular case the owner saw or heard enough to put a person of ordinary prudence on notice that his animal may have a propensity toward the behavior which would result in the type of injury inflicted. Stated differently, would what was known by the owner have caused a reasonable person to anticipate the kind of behavior which resulted in the injury which occurred?

Referring to a dog as a "guard dog" was not sufficient, standing alone, for a jury to conclude that a dog owner knew his dog was vicious. Kathren, supra. Expert testimony cannot establish the requisites of the scienter cause of action, because the essence of scienter is the animal owner's knowledge of the animal's dangerousness or viciousness:

Plaintiff argues the opinion of the expert that Mordecai was vicious and would have been vicious for several months is sufficient to allow the jury to find that defendants should have known of the dog's temperment. That opinion may have been evidence that the dog was in fact vicious, but it is not evidence that the defendants actually knew of the propensity or were aware of any manifestations of viciousness that would put them on notice. The burden was on plaintiff to prove the dog was vicious and that defendants knew of the dog's propensity. Kathren, supra at p. 718.

However, in Chance v. Ringling Bros., 257 Or 319, 328 (1970), it was held that evidence of general propensity of a Boxer dog to be protective and to jump was erroneously excluded.

The requisite knowledge or scienter can be imparted to the dog owner only a short time before the attack in question. In Westberry, supra, the plaintiff's son was bitten superficially on the hand while he was outside the dog owner's home. Upon entering, he complained that the dog had tried to bite him. When plaintiff attempted to walk past the dog on the way to her car, the dog attacked her and severly bit her too on the hand. Plaintiff sought damages on the theories of strict liability and negligence. The court held that there was sufficient evidence of negligence because the dog owner had reason to foresee that the dog would bite the plaintiff as it had bitten her son. The court permitted the case to go foward on theories of scienter (the common law cause of action) as well as negligence. "Failure to confine or control ... a domestic animal can give rise to a cause of action in negligence." Westbury, supra.

Similarly, in Medlyn v. Armstrong, 49 Or.App. 829 (Or.App. 1980), a young child was bitten in the face by a dog that had been eating. There was no evidence of provocation or of attempting to take the dog's food away. Nor was there evidence that the dog had ever bitten a person before this incident. However, the defendants were aware that their dog became very aggressive when around food. For that reason, the court held that the jury could properly determine that it was negligent to permit a young child to be in the vicinity of the dog when food was present.

This does not mean that the owner has a duty to confine the animal at all times, but only if the owner has "knowledge or a basis for knowledge ... that the dog will behave in a potentially injurious manner." Kathren, supra at p. 719. In that case, the court said:

Negligence, in terms of an omission to confine or control an animal, is based on a duty to take reasonable precautions to prevent a foreseeable risk of injury by the animal. Negligent failure to control or confine a dog must be analyzed in terms of the knowledge on the part of the owner that the dog will cause the injury actually incurred by plaintiff if it is not controlled or confined. (Id.)

The Kathren court placed great reliance upon the comments to Restatement (Second) of Torts, section 518. Comment (g) states, "[i]n determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics." Comment (h) adds the following:

One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm. Thus the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects and must exercise greater precautions to keep his bull under complete control if he drives it upon a public highway. So, too, the keeper of an ordinarily gentle bitch or cat is required to know that while caring for her puppies or kittens she is likely to attack other animals and human beings."

In addition to scienter and general negligence, Oregon holds that the violation of an ordinance that prohibits dogs from running at large can form the basis of a claim for negligence per se. Lange v. Minton, 303 Or. 484 (Or. 1987). An ordinance that makes it unlawful for any owner or custodian "to cause, suffer or permit an animal to run at large" implies some element of fault -- knowledge, consent, willingness or negligence -- on the owner's part that the dog run free. (Id.)

Litigation forms and other materials for attorneys

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