The
basics
General
rules
 Dog bite law is a unique combination
of city and county ordinances, state statutory law, state case law (i.e.,
legal principles that result from specific lawsuits within the state),
and common law (i.e., legal principles resulting from specific lawsuits
from throughout the United States, usually as reported in authoritative
legal works such as the Restatement of Law). The entire body of dog bite law includes civil, criminal and administrative laws. In general, civil laws provide monetary compensation for the victim, criminal laws impose punishment on the dog owner, and administrative laws create a remedy against the dog itself. For example, California's civil code gives a victim the right to prosecute a "private animal control" case, so the civil and administrative areas overlap in that instance. (For more about "private animal control," see Dangerous and Vicious Dogs.)
A dog bite victim therefore may have a remedy in civil court, criminal court, and "dog court." This section of Dog Bite Law will focus on the civil laws. Criminal and administrative remedies have their own requirements, and victims are frequently shocked to learn that the most horrific attacks are not prosecuted as crimes or animal control violations. To learn more about the other two areas of law, see Criminal Penalties for Dog Bites and Dangerous and Vicious Dogs (which covers animal control laws and "dog court").
Broadly speaking, all states hold
a person civilly liable for a dog bite if the person ordered or made the dog attack the victim, or if the person knowingly kept a dog that previously bit a person or exhibited a tendency or intention to someday
bite a person. Additionally, almost all states make a person responsible for negligence that results in any injury caused by a dog, and violating a public health and safety law such as
a leash law or a prohibition against dogs running at large if it lead to the dog bite. Some states refer to the doctrine of premises liability when the victim is harmed on the dog owner's property, but the basis of liability nevertheless is grounded upon negligence. All of these principles apply to bites as well as non-bite injuries.
Additionally, most American states and the District of Columbia have passed
statutes which create liability in the absence of the traditional requirements for legal responsibility. These dog bite statutes vary widely. They may impose
liability upon whomever had custody of the dog as well as its owner, apply
to non-bite injuries as well as bites, limit their scope to only the victim's medical bills, or provide for additional compensation
if the dog previously bit a person. While the majority of dog bite statutes impose strict liability based on ownership of the dog, a number combine concepts of negligence, common law strict liability, and/or violations
of local law, sometimes causing great confusion even in the courts. See the extended discussion in Statutory strict liability states, below. Some of the most complicated dog bite statutes impose strict liability under limited circumstances or for limited types of losses, while relying more heavily on the one bite rule
The usual defenses to dog bite
claims are that the victim provoked the dog, was a trespasser, was negligent,
consciously assumed the risk of being bitten, or was a canine professional
who was deemed to assume the risk. When the victim is a child, another
defense is that his parent negligently failed to supervise him, and therefore
was a cause of the accident (however, this defense is usually limited to an extreme lapse of supervision on the part of the parent). In one bite states, the primary defense is that the dog owner did not have previous knowledge that his dog had vicious tendencies, and therefore should not be held liable for the dog's first bite. Because these defenses are based on state statutes
or judicial decisions, the defenses are different from state to state; furthermore, any particular defense might not apply in a specific case because of the particulars of the law in the jurisdiction where the incident happened.
How
to determine liability when the state does not have a dog bite statute
If a state does not have a dog bite statute, that state is a one-bite state. In one-bite
states, legal responsibility is determined by the following principles:
- The first issue is whether
the dog previously bit anyone. If so, then the dog owner / custodian
is strictly responsible.
- If the answer is no, the second
issue is whether the dog previously did something that should have put
the owner / custodian on notice that the dog was inclined to bite somebody
in the future.
- If that answer is no, we consider
whether the person having custody of the dog at the time of the incident
had violated any law pertaining to public health or safety, which was
intended to protect people like the victim. An example would be a leash
law, but there could be regulations such as those that restrict dogs
from being in day care centers are beauty parlors. The violation of
such a law would be considered "negligence per se." In some states,
like Georgia, the violation is not negligence per se but rather an alternate
way of proving liability under the dog bite statute.
- If we cannot find negligence
per se, we consider whether the accident was caused by negligence. For
example, a dog that is habitually mistreated, or sick, or suffering
from a painful disease is more likely to bite a person, even if the
dog has never done so before. Negligence is a ground for liability
in most but not all of the one bite states. Sometimes it is referred to as "premises liability" when the incident happens on the dog owner's or custodian's land.
- If the dog owner or custodian
is not legally responsible, then we consider whether anyone else might be liable
as a result of their negligence or knowledge of the dangerous propensity
of the dog to bite people.
When
the dog owner does not have insurance or resources
If the dog owner is unable to compensate
the victim because of lack of insurance or resources, attorneys consider
whether anyone else might be responsible because of their own negligence.
An example would be a landlord who knows that a dangerous dog is living
with a renter, but fails to do anything to control the dog or its owner.
Statutory strict liability states
 Most states impose statutory strict liability for dog attacks, making the owner of a dog
legally liable to a victim who was bitten. In the United States, dog bite statutes imposing strict liability date back to the 1800's. See, for example, Michigan's 1850 PA 161, which established that if any dog "shall assault or bite, or otherwise injure any person while traveling the highway, or out of the enclosure of the owner or keeper of such dog, such owner or keeper shall be liable to the * * * person injured in double the amount of damages sustained, * * * and it shall not be necessary in order to sustain an action, to prove that the owner or keeper knew that such dog was accustomed to do such damage or mischief." Cited and set forth in Nicholes v. Lorenz, 237 N.W.2d 468, 396 Mich. 53 (MI, 1976). Strict liability falls in and out of favor, as evidenced by the experience of Michigan, which repealed its strict liability dog bite statute in 1929, and then, in 1939, enacted an even stronger dog bite statute. (See the Nicholes decision, ibid.)
A dog does not get "one free bite" in a statutory strict liability state, the prior behavior of the dog is not an issue, and it is unnecessary
to prove that the owner or handler was negligent. The dog bite statutes differ in their scope; depending upon the jurisdiction, the
dog bite statute might to non-bite injuries as well as bites,
to non-owners who have custody, control or a financial interest in
the dog (i.e., a "keeper" or "harborer"), and/or to injuries suffered to property or by animals owned by third parties.
The term "statutory strict liability" is used to distinguish this cause of action from "common law strict liability" or the "scienter" cause of action, discussed below. Every state permits claims based on common law strict liability or scienter, but only states with a dog bite statute add an additional cause of action for statutory strict liability. Violation of a dog bite statute results in strict liability, not negligence or negligence per se. Stroop v. Day, 896 P.2d 439, 271 Mont. 314 (Mont. 1995); Seim v. Garavalia (Minn. 1981), 306 N.W.2d 806, 810.
The dog bite statutes vary greatly
from state to state, in wording and interpretation. For example, Minnesota courts have held that the dog bite statute imposes absolute liability, excepting only provocation and failure to act peacefully. On the other hand, a few states have combined strict liability with
other legal grounds and/or have put restrictions on their strict liability
dog bite statutes. In Pennsylvania and Colorado, for example, the dog bite statute applies to a bite that causes severe injury but not
one that causes little injury. Further complicating things, the Colorado
statute makes the dog owner strictly liable only for "economic losses,"
not pain, suffering and other non-pecuniary damages, which can be awarded
only if the victim can meet the proof requirements of a "one-bite
state." In Maine, the dog bite statute applies
only to bites that occur off the property of the owner or keeper.
In New York, the dog bite statute covers only medical bills, for which reason it is classified as a "mixed dog bite statute" (see below).
The most common exceptions to liability
are these:
- The victim was a trespasser
- The victim was a veterinarian
or canine professional who was treating the dog at the time of the incident
- The victim was committing a
felony or other crime against the owner of the dog
- The victim provoked the dog
by physically abusing it
- The victim assumed the risk
(i.e., explicitly or implicitly consented) to being bitten
- The dog was assisting the police
or the military at the time of the incident
The exceptions also vary greatly from state to state. Some states allow no exceptions at all to the wording of the statute. For example, Montana does not permit the defense of comparative negligence or any other affirmative defenses; the only permissible defenses are provocation and trespass because these are mentioned in the statute itself. Stroop v. Day, 271 Mont. 314 (1995); see also, Quellos v. Quellos, 643 N.E.2d 1173 (Ohio Ct. App. 1994); Massey v. Colaric, 725 P.2d 1099 (Ariz. 1986); Seim v. Garavalia, 306 N.W.2d 806, 811-12 (Minn. 1981); Nicholes v. Lorenz, 237 N.W.2d 468 (Mich. 1976). Other states have unique exceptions, such as Florida, which makes the dog bite statute inapplicable
if the dog owner had posted "Bad Dog" signs on his property. Again, note that there may still be liability under other legal theories even if the dog bite statute does not apply in a particular case. An attorney should be consulted if the dog bite statute seems to not apply. For more about this, see Does An Adult Need a Lawyer For a Dog Bite Claim?, and Should Parents Get a Lawyer For Their Injured Child?
There are several states that have incorporated the "one-bite rule" into their dog bite statutes in a significant way. These states are referred to as "mixed dog bite statute states." Georgia, Tennessee and New York are example of such states. In New York, for instance, the dog bite statute provides that
a dog owner is responsible only for paying the victim's medical bills; to collect the full range of damages, such as for loss of income
if the victim is permanently disabled, the plaintiff must prove that the dog previously behaved viciously toward a human being.
It would not appear useful, however, to attempt to divide the strict liability states into two categories, meaning strict liability states and mixed dog bite states. This is
because the distinction between them is sometimes difficult to make. Therefore, Attorney Kenneth Phillips uses the term "mixed dog bite state" only
for jurisdictions that have statues which clearly and substantially confirm, re-enact or adhere to the one bite rule.
Most states permit the dog owner to assert defenses other than those specified in the dog bite statute itself. See, i.e., Louisiana (Howard v. Allstate Insurance Co., 520 So.2d 715 (La. 1988), Arkansas (Ambort v. Nowlin, 709 S.W.2d 407 (Ark. 1986)), and New Jersey (Budai v. Teague, 515 A.2d 822 (N.J. Super.L. 1986). For this reason, it is most accurate to refer to even the most uncompromising dog bite statute as one which provides "almost strict liability" as opposed to pure strict liability.
Other states impose conditions upon a victim who attempts to employ the dog bite statute. For example, in Massachusetts the courts have held that the victim has the burden of proving that he was not "committing a trespass or other tort" and was not "teasing, tormenting or abusing" the dog. Sullivan v. Ward, 304 Mass. 614, 615-616; Curran v. Burkhardt, 310 Mass. 466, 467; Rossi v. DelDuca, 344 Mass. 66, 69. This burden can work a grave injustice upon a person who was mauled so severely that he cannot remember exactly what occurred.
Procedural and other laws can restrict a victim's right to bring a dog bite claim. The most important of these is the statute of limitations, which places an outside time limit upon all claims. See Beware of the Statute of Limitations. But even custody of a child can be a consideration in a dog bite case. The parent having legal and physical custody of a child is entitled to bring an action for the child's personal injuries from a dog bite. If the other parent also brings an action, the parent having total custody can have the other parent's action dismissed. Murphy v. Bergo, 400 N.W.2d 387 (MI Ct. of App., 1987).
Do not assume that your state has established any of the "usual" exceptions to liability. You must research the availability of any particular defense in your own state.
Here are the states that have dog bite statutes:
* Please note that the states listed above with asterisks (*) have statutes that combine strict liability with elements of the one bite rule, but primarily rely upon the one bite rule. These are referred to as "mixed dog bite statute states" and are discussed below in greater detail.
"One-bite
states" and "mixed dog bite statute states"
 A "one-bite state" (also
referred to as a "one free bite" state) adheres to the ancient "one-bite
rule." This rule acts as both a shield and a sword, in that it shields
dog owners from liability for some dog bites, while it imposes liability
(acts like a sword) for other dog bites. Specifically, it provides that:
- The dog owner (and everyone
else who is connected with the dog) is protected from
liability as to the first injury caused by the dog, unless liability can be based upon other grounds.
- The dog owner, harborers and keepers will be held strictly liable
for dog bites and other harm caused by a known dangerous propensity of the dog. For example, if the dog previously bit someone, and the
owner knew about it, then the owner will be responsible every time the
dog bites anyone else. Liability results from keeping a dog that was
known to hurt people. The key to this type of liability is knowledge
(which the law often refers to as "scienter").
For more information about the "one-bite
rule," see The
One-Bite Rule on this website.
A "mixed dog bite statute state" is a state having a dog bite statute that substantially embodies the "one bite rule" while containing some degree of strict liability. These states appear in the list of statutory liability states because, indeed, they impose statutory liability upon dog owners under limited circumstances. Therefore they have to be regarded as being a little of both -- statutory liability states but also one bite rule states -- and reference must always be made to these two different areas of law.
Even if you live in a one-bite
state or mixed state, keep in mind that owners and others can possibly be held liable for (a) negligence, (b) premises liability, (c) violation of a leash law or other
municipal law that leads to injury (see below for more information), (d)
intentional conduct involving the use of a dog, and (e) outrageous or
reckless behavior involving the use of a dog. You absolutely require the help of an attorney to know whether your state will permit recovery upon any of these other grounds.
The "one-bite states" do not have
dog bite statutes, and the mixed dog bite statute states have complicated statutes that are challenging even to attorneys. This means that only a person who is skilled in legal research will be able
to form a competent legal opinion about the particularities of dog bite
law in these states. This makes it even more important to retain an attorney
if your case arises in a "one-bite state" or mixed dog bite statute state. For more about this, see Does An Adult Need a Lawyer For a Dog Bite Claim?, and Should Parents Get a Lawyer For Their Injured Child?
The traditional exceptions to liability, even where the one-bite rule could be satisfied, are that the victim assumed the risk of injury, or that he provoked the dog. Trespass was not a defense at the common law. (Dog Owners' Liability: Statutory Effects, Duke Law Journal, Vol. 1960, No. 1 (Winter, 1960), pp. 146-149.)
Here is a list of the "one-bite
states":
The mixed dog bite statute states are listed in the prior section, above.
Negligence
In almost every jurisdiction, a person is
liable for all losses and damages that result from his or
her negligence. With certain exceptions, dog owners, people who handle dogs,
people who harbor dogs, and everyone else connected in any way with a dog
can be held responsible if their negligence causes injuries. The doctrine of negligence may make a person liable
not only for bites but also for non-bite injuries.
Negligence is usually defined as
an unreasonable action, or unreasonable omission to take
action or give a warning. An example of an unreasonable action would be
a dog owner letting go of his dog's leash when another dog approaches,
so that the dogs can "play." An unreasonable omission might be the failure
to keep a dog away from guests, where the dog is known to play too roughly
and knock people down. When an adult invites a child into the adult's
home, the courts of many states say that a "special relationship" exists
between that adult and child, requiring the adult to take more precautions
than if the guest was an adult.
When a person in possession of land fails to protect a visitor from a dangerous dog, this type of negligence is sometimes pursued under the doctrine of premises liability. The underlying act or omission is the unreasonable failure of the defendant to eliminate the danger, warn of it, or protect the visitor from it. States that employ the premises liability doctrine in dog bite cases ask whether the victim was a trespasser, licensee or invitee, and permit only the latter two categories of people to recover compensation.
The general rule is that the cause of action for negligence exists side-by-side with the cause of action for scienter. Both are set forth by the Restatement (Second) of Torts, and in theory they clearly do not preclude each other. The section 509 cause of action (see below) is based on a history of injuring people or behavior establishing a propensity to injure people, while the section 518 cause of action (also below) is founded on intentionally or negligently failing to prevent the injury. Section 509 describes the elements of the scienter cause of action as follows:
(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. (Restatement (Second) of Torts, § 509, at p. 15.)
Section 518 of the Restatement (Second) of Torts, § 518, describes the negligence and assault causes of action:
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. (Restatement (Second) of Torts, § 518, at p. 30.)
There are some states, however, whose courts have impaired or eliminated the negligence cause of action as it pertains to the broad range of canine-inflicted injuries, meaning bites and other injurious conduct of a dog. The decisions of these courts do not distinguish between the very different concepts set forth in Restatement sections 509 and 518. For example, the courts of New York prohibit the negligence cause of action when it comes to any domestic animal. The courts of Georgia construe the common law and the Georgia dog bite statute as prohibiting negligence. Decisions in Maryland and Ohio appear to eliminate negligence as a viable cause of action in dog bite cases by defining it as behavior taken with knowledge of a dog's dangerous propensity to bite. Upon reading these court decisions, it usually becomes clear that the confusion results from discussing a general principle, namely negligence, in the context of a specific mechanism of injury, namely a dog bite. While it is true that keeping a dog that bites people can be called negligence, it is not true at all that a finding of negligence must be based on keeping a dog that bites people -- negligence can consist of putting a watchdog on a bed with a crying infant, or allowing a pit bull to mingle with toddlers in a day care center, or other unreasonable conduct that foreseeably can result in injury.
A recent case in Georgia, however, illustrates not only the flaws of reasoning when dog owner negligence is said to be non-actionable, but also the willingness of modern judges to hold irresponsible dog owners accountable when circumstances warrant it. In April 2006, Attorney
Kenneth Phillips argued against a motion for summary judgment aimed at
"throwing out" a Georgia dog bite lawsuit known as the Braeden Kelly Case.
One of the claims in that suit was that the attack resulted from the negligence
of the dog owners. The defendants, who were represented by their insurance company, based their request upon Georgia court decisions which proclaim that negligence is not a proper cause of action against dog owners. The trial court
sided with the victim regarding
the negligence claim. This led to settlement in August 2006. (Georgia attorneys
who represent dog bite victims are invited to contact
Mr. Phillips, who will send them the materials involved in
that motion.)
The negligent act or omission to
act must be the proximate cause of the losses. Proximate
cause is a unique legal concept. Basically it means that the harmful result
must be closely related to the negligent act or omission. For example,
if a dog digs under a fence and gets out and hurts someone, that will
be considered the fault of the dog's owner, and that negligence would
be considered the proximate cause of the harm inflicted. However, if the
dog gets loose and the victim, seeing it running around, decides to walk
around the block but gets a heart attack because of the walk, there would
be at least a big legal battle over whether the loose dog was the proximate
cause of the heart attack.
The victim must be a person to
whom the dog owner owes a legal duty. For example, the mother
of a child victim who is bitten in the mother's presence is a person to
whom a duty is owed. However, the child's best friend who was not a witness
to the attack is not owed a duty even though he or she might suffer terrible
emotional distress as a direct result of the injuries to the best friend.
A negligence case is not necessarily limited to the dog owner or his landlord. Animal control authorities (including animals control departments, police departments, and the cities they serve) have been successfully sued for negligence. See, i.e., Jones v. City of Prairie City, 86 Or.App. 701, 740 P.2d 236 (Or.App. 1987), in which the court held a city police department liable for damages sustained by a dog bite victim who had to submit to painful rabies inoculations because the department euthanized the dog before determining whether it had rabies.
The victim's own negligence sometimes
is a cause of an accident. Depending on the comparative negligence (or comparative fault) and contributory negligence laws in the state whose law applies
to that accident, the victim's negligence will hurt or even destroy the
possibility of receiving full compensation. For example, if the victim
is walking his dog without a leash, and the handler of the attacking dog
also is walking her dog without a leash, and the victim is injured trying
to keep the dogs from fighting, it is probable that the victim will be
held responsible for some part of his own injury. The consequence of such
negligence depends on the law of the state where the accident happened:
- 5 jurisdictions apply the law
of contributory negligence. This is an ancient doctrine
that says that as little as 1% fault on the part of the victim will
reduce his claim to nothing! Those jurisdictions are Alabama, Maryland,
North Carolina, Virginia and the District of Columbia.
- 13 states have "pure"
comparative fault, meaning that there is no minimum threshold of negligence
that the tortfeasor must meet in order for the victim to get compensated.
In a "pure" comparative fault state, the victim who proves that the
tortfeasor was 50% responsible would receive 50% of the monetary value
of his losses and damages -- and likewise, a victim who is 90% responsible
would receive 10% of the value of his claim.
- 22 states have a 51% threshold, meaning that the tortfeasor must be 51% (or more) responsible
for the accident, as compared with the victim, or else the victim gets
nothing. To put it another way, the tortfeasor and the victim cannot be equally at fault; if they are equally at fault, the victim gets nothing. In the example given above, if the victim was held to be 50%
responsible and the other dog owner was held 50% responsible, the victim
would receive nothing because the dog owner's (or handler's) conduct
did not meet the threshold figure. If there is more than one tortfeasor,
then some states hold that any particular tortfeasor has to have a higher
percentage of negligence than the victim, while others require that
the combined total for all of the tortfeasors has to be 51%.
- 11 states have a 50% threshold, so the victim would be entitled to recover 50% of his provable
losses even if he is were 50% at fault. In other words, the victim can be just as much at fault as the tortfeasor, and still recover the applicable portion of his losses. However, he would receive nothing
if he were 51% or more at fault. It should be noted that the Maine dog bite statute has a special clause which provides that a dog bite victim's compensation cannot be reduced unless he was more at fault than the owner or keeper of the dog.
Some people are responsible for the
negligence of others. In other words, some people have to pay for losses
that they do not cause. This is called respondent superior.
Examples are:
- Employers whose employees are
negligent during the course and scope of their duties for the employer. See Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 730.
- People who direct the actions
of someone else and expose them or the public to the risk of harm, or
a greater risk of harm than usual.
There are exceptions to the usual
rules of negligence:
- A government agency or
employee can be sued for negligence only within the rules established
by the government entity. In other words, if the government has not
consented to be sued for something, it cannot be.
- A young child may be deemed incapable of negligence. For example, an 18-month-old
baby will not be held comparatively negligent for pulling the tail of
a dog.
Some victims cannot sue for negligence.
Generally, people who assume the risk of injury cannot sue after being
injured, because they are deemed to have consented to the injury. For
example, veterinarians generally cannot sue for dog bites suffered
when the dog was being treated or was under the control of the veterinarian,
unless the dog owner did something out of the ordinary that resulted in
the injury, such as concealing a fact about the dog that would have caused the veterinarian to take precautions.
This is generally referred to as the "fireman's rule" or
even "veterinarian's rule." In many states, this rule is applied very broadly to cover anyone working with a dog.
There are
other complications that arise in the negligence context (although they
are often present in the strict liability cases also). Here are two of
them:
- When an accident happens in
"State A" and the victim lives in "State B," there might be a conflict
of laws: one state might have strict liability laws while the other
might require the victim to prove that the dog was dangerous or the
owner was negligent. This conflict requires application of the principles
of jurisdiction, residence and choice of laws.
- When two or more persons are
responsible for an accident, some states have decided that each tortfeasor
is responsible for all of the damages (so if one is insured but the
other is not, the victim can recover 100% of his or her losses from
the one who is). This is called joint and several liability. Other
states have determined, however, that (a) each defendant is responsible
only for his proportionate share of the general damages (i.e., the pain
and suffering, compensation for disfigurement, and other non-economic
losses) but any one defendant still can be "hit" with all of the economic
losses, (b) only tortfeasors who are at least some percentage at fault
(i.e., 20%) can be held responsible for paying all of the losses, or
(c) other variations (see Footnote 1,
below). This can result in a completely blameless victim receiving only
a percentage of rightful compensation for his or her damages and losses.
When the dog bite victim is a child, insurance companies often argue
that the dog owner should pay only a portion of the damages, on the
ground that the parent of the injured child failed to supervise him,
and therefore was responsible in part for the accident.
Lay persons therefore need to understand
that issues pertaining to negligence are complicated and generally beyond
the scope of lay understanding. It requires an experienced tort lawyer to
render a reliable opinion as to whether an act or omission constitutes negligence,
and how the related rules will be applied in any particular state. This is one of the reasons why dog bite victims need to have legal representation. For more about this, see Does An Adult Need a Lawyer For a Dog Bite Claim?, and Should Parents Get a Lawyer For Their Injured Child?
Negligence per se for violating a leash law or other animal control law
Another form of negligence is called "negligence per se." It refers to the consequence of breaking
a law designed to prevent harm to people. The violation of a penal statute or ordinance implies that the defendant has failed to behave in accordance with the expectations of the community. When such a violation results in harm to a person whom the statute or ordinance was designed to protect, the doctrine of negligence per se holds that the violator is fully liable.
It has been universally held that the violation of a leash law, a prohibition against dogs trespassing, or a prohibition against dogs running at large constitutes negligence per se if the dog causes harm to person or property. For examples of states following this doctrine, see Brotemarkle v. Snyder, 99 Cal. App. 2d 388 (1950); Duffy v. Debhart, 52 Del. 312 (1960); Alex v. Armstrong, 215 Tenn. 276 (1964); Butler v. Frieden, 208 Va. 352 (Va. 1967).
The differences between these three types of animal control laws are subtle but important:
- A leash law requires that a dog be on a leash when off it's owner's property. Usually the length of the leash is specified, and it is stated that there must be a person at the other end of the leash, preferably someone who is of sufficient age and capable of controlling the dog. A leash law that permits a dog to be unleashed if it is under "voice command" or "the control of its owner or keeper" has built-in loopholes which should be eliminated.
- A prohibition against canine trespass makes it a crime for a dog to be on another person's private property, without the permission of the owner of that property, whether or not the dog is leashed. Permission can be express or implied.
- An at-large law makes it illegal for a dog to be off it's owner's property, or upon that property if it is unfenced, unless the dog is confined, leashed or under the control of its owner. Sometimes electronic containment systems are specifically outlawed. The loopholes in such laws result from the term "the control of the owner," and the use of the words "allow" and "permit." (See below for further details.)
There is one state that puts peculiar
reliance upon the theory of negligence per se. The State of Georgia appears
to recognize a negligence claim only if it involves a "trimmed down"
version of negligence per se, as set forth in Georgia's dog bite statute,
OCGA 51-2-7. Otherwise, the statute makes it appear that Georgia is a
strict "one bite" state. There is no other state whose dog bite statute relies
so heavily on the doctrine of negligence per se.
This doctrine is of prime importance to dog bite victims in one-bite states. (See The One-Bite Rule; the list of one-bite states can be found below, in this section.) When the attacking dog does not have a provable history that demonstrated his dangerous or vicious propensity, the victim in a one-bite state must find another ground for recovery, or be left without a remedy. The violation of one of these animal control laws usually provides such grounds.
The biggest issue that arises in negligence per se cases is whether the violation of the criminal statute or ordinance requires proof of a particular state of mind on the part of the defendant. Depending upon its interpretation, a law that uses the words "permit" or "allow" (i.e., "a dog owner shall not permit or allow his dog to run at large") may or may not be violated if a dog digs under a fence, escapes the yard through a gate that usually is kept closed, or runs out the front door when it is opened to accept delivery of a package. Courts are split in such cases, some holding that there is no violation without proof of intent to let the dog out, others holding that the dog owner must be negligent or must have knowledge of the escape for liability to attach, and yet others declaring that the violation occurs when the dog is loose regardless of the owner's state or mind or knowledge of his dog's whereabouts.
In this case, a strong animal control law should focus on the dog and not the owner's intent, knowledge or degree of care -- in other words, canine trespass and at-large laws should be drafted and interpreted as imposing strict liability upon dog owners. The 2006 killing of Dianna Acklen in Tennessee illustrated the effeteness of a statute using the word "allow." The state's at-large law read as follows: "It is unlawful for any person to allow a dog ... to go upon the premises of another, or upon a highway or upon a public road or street...." Three dogs were running at large and savagely mauled the 60-year-old librarian as she took her nightly walk. Because the statute used the word "allow," however, no criminal charges were brought against the dog owners, because they denied knowing or permitting their dogs to be loose. (In 2007, Attorney Kenneth Phillips drafted legislation for the State of Tennessee that closed the loophole brought to light in the Acklen case; see Tennessee for more information about the new laws.)
Another consequence of a poorly worded leash law, trespass law, or running at large law is that it can result in prolonged litigation. When the violation of a statute or ordinance requires a certain state of mind on the part of the defendant, that state of mind is usually proved by circumstantial evidence. In other words, to prove that an owner allowed his dog to be outside on the day it mauled a victim, it is necessary to get a confession from the owner (which is not likely), or to show that the owner habitually permitted the dog to be outside without a leash (implying that it was also allowed to be at large on the day of the attack). The Braeden Kelly Case in Georgia illustrates the lengths that the victim must go in order to establish, by circumstantial evidence, that the dog owners permitted their dog to be out without a leash in violation of local law. Over a dozen depositions were taken during the course of a week, and the victim then was required to beat the dog owners' motion for summary judgment, which was partially based on the issue of whether they permitted their dog to be at large on the date of the attack. The victim prevailed after more than a year of litigation (Attorney Kenneth Phillips, who represented Kelly, will make the case materials available free of charge to Georgia attorneys who contact him).
City
and county law, and how to find it yourself
"Dog bite law" is a combination of city,
county and state law. An accurate, reliable opinion about any particular incident must consider all three of these sources of the law. There is no federal law of dog bites or domestic animal liability. There also is no military law of dog bites. This web site has all of the state laws. However, it is not possible
to list all of the city and county laws, because there are so many and they change from time to time. Therefore, you
must find the law yourself, or retain an attorney. In a serious case, it is highly recommended that you retain a lawyer. For more about this, see Does An Adult Need a Lawyer For a Dog Bite Claim?, and Should Parents Get a Lawyer For Their Injured Child? Instructions for researching the law yourself can be found on the FAQ page of Dog
Bite Law.
Attorney Kenneth Phillips has drafted Model Dog Bite Laws. These should be compared with the laws in your city, county and state. His model laws can be adopted without change, or can be used to update and modify your existing laws.
Laws
of foreign nations Click
here to see the topic, "Foreign," under "Legal Research
for Lawyers." It will show you a list of links to laws outside the
USA.
Other grounds for liability
There are a number of grounds on which a dog bite victim can recover compensation, from a number of different types of defendants, including people other than dog owners. In some cases, for example, a land owner or landlord can be held responsible for injuries inflicted by dogs owned by tenants. See Landlord Liability for Dog Bites. For other examples, return to the home page of Dog Bite Law and review the topics listed under For Dog Bite Victims. In appropriate cases, a third party can be held liable for injuries inflicted using a dog, under legal causes of action such as assault, battery, and infliction of emotional distress.
Attorneys should read the comprehensive description of possible causes of action given in Remedies in Dog Bite Cases, which is included in Dog Bite Litigation Forms for Plaintiffs' Lawyers. A somewhat abbreviated version of it was published in Trial magazine as "Put Some Teeth In Your Dog Bite Claim," February 2006, pp. 62-67.
The
amount of money the victim should receive
A dog bite victim can get money for
all of the following things:
- Medical treatment such as first
aid, emergency room, hospital, and ambulance
- Future medical treatment for
scar reduction
- Psychological counseling to
overcome the emotional trauma of the attack, fear of dogs, fear of being
outdoors, and dealing with disfigurement
- Loss of earnings from work
or the victim's business
- Torn clothing and broken glasses
- Medications
- Pain and suffering
- Future disability
Some dog bite victims are attacked
with their dogs or other pets, which are injured or killed. Owners of injured
animals may be entitled to compensation. If your pet was injured or killed,
you can obtain the legal forms necessary for receiving compensation, as
well as additional legal advice and guidelines, from the book entitled What To Do If Your Dog Is Injured Or Killed.
Many states recognize that the
person who is bitten might not be the only victim. A member of the immediate
family might be suffering from emotional distress as a result of seeing
the victim getting mauled. This would be the basis of what is called a
"bystander claim." A spouse might suffer because the husband or wife is
incapacitated in some way. This is called a "loss of consortium" claim.
If the victim dies from his injuries, family members might have claims
for "wrongful death." You must retain a lawyer to give you advice about
the law in your particular state. For further information about bystander
claims, read Bystander claims in The
Dog Bite Law Adviser.
The foregoing is not a complete
list of possible items of compensation. You must consult an attorney to
determine what might be involved in your case. Here are two examples of
unusual losses that resulted from real cases:
- The victim
purchased airline tickets that had to be used on a certain day and were
nonrefundable. The day before the trip, the victim was bitten very badly,
and therefore he could not use the tickets. He received reimbursement
from the owner of the dog.
- Another
person was disabled because of the injury. The dog owner's insurance
company had to pay for a nurse who visited the victim's home. When the
victim got somewhat better, the insurance company paid for job training
too.
Estimating the
amount of compensation for a victim is a difficult task that requires the learning and experience of an attorney. This is one of the reasons why dog bite victims need to have legal representation. For more about this, see Does An Adult Need a Lawyer For a Dog Bite Claim?, and Should Parents Get a Lawyer For Their Injured Child?
Who
actually pays the damages
Many serious dog attacks involve the
dog of a friend or family member. In fact, when the victim is a small child,
there is a 75% chance that the dog owner is a family member, neighbor or
friend. Therefore, victims frequently worry about who will pay their damages
because they don't want a friend or family member to feel the burden. There
is no reason to worry. Even though the dog owner is technically liable,
the damages usually are paid by:
- Homeowner's insurance
- Renter's insurance
- Motor home owner's insurance
- Condominium owner's insurance
- Landlord's insurance (covering
the owner, occupier and/or manager of property)
- Commercial general liability
insurance (covering stores and other businesses)
- Insurance covering employers
(protecting employees only)
- Motor vehicle insurance (if
the accident results from the use of the vehicle; i.e., if the dog and
the victim were inside the car, or the dog was tied to the car and the
victim was walking past the car, but probably not if the dog jumped
from the car and ran 25 feet to bite the victim, as was the case in State
Farm Mut. Ins. Co. v. Grisham (2004) 04 C.D.O.S. 8574 (CA Court
of Appeal)
Therefore, if you are a victim and
the dog owner is a friend or family member who is covered by insurance,
and if that insurance has a limit high enough to cover your needs, there
is no possibility that your friend or family
member will ever have to pay one cent toward your compensation.
There have been cases where a defendant
in a lawsuit had to pay for damages out of his or her pocket because:
- The insurance was inadequate
- There was no insurance
- The defendant acted with actual
malice and intentionally caused the injury, and the damages were designed
to punish him or her
However, the
victim has complete control as to whether to ask for or collect such compensation.
If the victim decides against pursuing certain damages, there is no possibility
that the dog owner will have to pay them.
How
to find out whether the liable person is insured
In the majority of states, the primary method of finding out whether the liable person is insured is to simply ask him for a copy of the "declarations page" of his homeowners or renters insurance policy. The "declarations" are the specific information about a policy, such as the policy number, name of insured, address of insured, and amounts of coverage.
This requires the victim (or victim's family) to communicate with the dog owner, which can be difficult in many cases. When the dog owner is a friend, neighbor or family member, some dog bite victims prefer to leave this inquiry to their attorney. (In this section, the term "dog owner" is used to refer to owners, harborers, keepers, custodians and anyone else who might be liable for the bite.)
If the dog owner does not have homeowner or renter insurance, one should ask whether he has any of the other insurance
policies listed in Who actually
pays the damages, above.
If the limit of the insurance seems inadequate, one should also find out if the dog owner has an "umbrella policy" or "excess policy." These are supplemental policies. Some dog owners have them as part of the motor vehicle insurance, so one should ask them to check their vehicular insurance and even to talk to their insurance agent or broker about this.
A serious problem for dog owners is the exclusion or limitation for animal-inflicted injuries. The insurance
industry is getting away with selling insurance that excludes
dog bite coverage or limits the coverage to a small amount of money. If this dog owner has that kind of insurance and doesn't
have an umbrella or excess policy to supplement it, then he might not have insurance.
(An umbrella policy might provide
dog bite coverage even if the underlying policy doesn't.)
These kind of uncertainties
lead to confusion. Many dog owners don't know that their homeowner insurance
covers dog bites (as does renters insurance and the other types mentioned
above). Furthermore, some dog owners say that they don't have insurance
when they don't know one way or another -- and even when they know that
they have it. People do this in the hope that a victim will simply "lick
his wounds" and disappear. Needless to say, you can't accept that
if your injuries are serious.
There are few states
that require a person to disclose their insurance in dog bite cases and other non-vehicular accidents. For example, see Georgia State Code, Title 33, Chapter 3,
Section 28 (GSC 33-3-28), which requires the dog owner or other liable
person to disclose the identity of every insurer within 30 days, and requires
the insurer(s) to provide a copy of the insured person's declaration page
or else a statement giving complete information about all known insurance
including but not limited to excess and umbrella coverage. See also Florida statute 627.4137.
If you cannot get
details of the insurance policy, or the dog owner denies having any, the only way to know whether insurance exists is to serve the owner with a lawsuit. You then will find out
because his lawyer will let you know during "discovery" and
"disclosure" -- two processes that take place in lawsuits. (For more information about these processes, see the Dog Bite Law Adviser.) For this, the dog bite victim must retain a lawyer. For more information about the decision to retain an attorney, see Should Parents Get a Lawyer for Their Injured Child? (if the victim is a child) or Does an Adult Need a Lawyer for a Dog Bite Claim?
Remember that lawyers who represent consumers commonly offer
free consultations. That's one of the many services that "trial attorneys"
give to the public. They also will enter into a contract that says that
they will not be paid anything until the very end of the case, when money
is available. Furthermore, in most states they also agree to advance all
of the costs of the litigation. So if it looks like there might not be
insurance, but the injuries are serious, you may have to see a lawyer
simply to find out whether the dog owner is insured -- but the good news
is that it won't cost you anything unless you win your case.
What
will happen to the dog
In most cases, absolutely nothing
happens to the dog except that it might be quarantined for a few
days (frequently at the dog owner's home). If the attack is brutal or other
conditions are met, however, the local animal control authority or court
may issue orders requiring that the dog be confined or destroyed. In California,
a Court can declare a dog to be a "potentially
dangerous dog" or a "vicious
dog."
- A "potentially
dangerous dog" has to be confined inside, or in a fenced yard that
is escape-proof and child-proof. When off the owner's property, it has
to be restrained by a substantial leash and under the control of a responsible
adult.
- A "vicious
dog" can be destroyed or, if the dog is to remain alive, severe
conditions may be imposed for the protection of the public.
To read more about the legal aspects
of vicious and dangerous dogs, see Dangerous dogs.
Dog bite victims often do not want
anything to happen to the dog. If the local animal control department
has not been notified, the victim can instruct his or her attorney to
refrain from doing so. The attorney is required to do a client's bidding
with regard to notification of the authorities (as well as anything else
affecting the client's rights). A victim therefore can be assured that nothing will happen to a dog against the victim's
will.
If the victim's presence
is required at a "dangerous dog hearing," she should consult
with an attorney. The procedures often followed by animal control departments
in "dog court" hearings may unintentionally compromise the victim's
rights. A victim and her family therefore should not communicate with
animal control authorities until her lawyer reviews the city and county
ordinances, obtains the department's commitment as to which laws and
procedures they will be following, and is satisfied that the issues addressed
elsewhere in Dog Bite Law will be resolved fairly. (See Dog Bite Victims Need an Attorney for "Dog
Court.")
More
information for parents of injured kids
If your child
was bitten, you have special responsibilities, morally and legally, as the
guardian of his or her legal rights. Please read Should Parents Get
a Lawyer for Their Injured Child?
Footnote
1:
-
The following is taken
from the Preface to the Uniform
Apportionment of Tort Responsibility Act (Sixth Tentative Draft, Styled,
January 22, 2002), by the National Conference of Commissioners on Uniform
State Laws:
-
"Many jurisdictions
employing comparative fault today have been persuaded to severely limit
joint and several liability. In some ways, one might observe that the
law in this area has come full circle, as it were, and has returned in
large part to the position of the early common law. As a general rule,
where defendants have acted in concert, joint and several liability has
been retained. In addition, some jurisdictions have retained joint and
several liability where multiple defendants have engaged in conduct which
results in environmental harm. Beyond these two situations, however, many
jurisdictions today in some manner have abolished joint and several liability
and, thereby, any necessity to recognize rights of contributions among
joint tortfeasors. How has this trend manifested itself?
-
"In those jurisdictions
that have not completely abolished joint and several liability outside
of the two areas mentioned above (acting in concert and environmental
harm), a number of different approaches have been taken to limit joint
and several liability. For example, some jurisdictions still permit joint
and several liability for economic loss, but do not permit such for non-economic
loss. Other jurisdictions do not allow a tortfeasor that is determined
to be less than a certain percentage at fault, say 20 percentage, to be
held jointly and severally liable with other tortfeasors whose individual
responsibility is determined to be in excess of that figure. Still another
variation is seen in those jurisdictions that, although initially prohibiting
joint and several liability, permit claimants to show that a judgment
entered severally against multiple defendants is not capable of being
satisfied on that basis. Upon such as showing, a court may be permitted
to reallocate the non-paying judgment debtor's obligation to others adjudged
responsible for a portion of the harm suffered.(Footnote omitted.) The
reallocation process may take one of several forms. For example, it may
merely reallocate the non-paying judgment debtor's portion among the remaining
judgment debtors. Or, it may take into account any contributory fault
on the part of the plaintiff so that the allocation of responsibility
itself is revised to take into account the relatively greater responsibility
of the claimant once the responsibility of a non-paying judgment debtor
is eliminated from the equation.
-
"In addition to the
above, other issues have become more acute. For example, the issue of
comparing intentional conduct with lesser forms of culpability has received
much more attention since the Uniform Comparative Fault Act was promulgated.
This includes the possibility of comparing any negligence on the part
of a claimant with intentionally caused harm by a defendant as well as
comparing the intentional conduct of one joint tortfeasor with the negligent
conduct of other joint tortfeasors. The occasion for these issues to be
raised has increased as the courts have expanded tort liability in areas
involving an actor's obligation to protect a tort victim from the intentional
tortious acts of a third party. Present legislation dealing with apportionment
of tort responsibility does not always address these issues and, where
that is the case, court decisions have been anything but unanimous in
resolving the problems." (Click here to return to
the text.)
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