I got an email message from a young lady whose face was severely bitten by a girlfriend's Rottweiler last week. She told me that "a chunk the size of a quarter" was taken out of her cheek, and that her bottom lip was "severed in half and hanging off." What did she do? Nothing. She did not even go to the doctor. 

Why not? She did not want to bother her girlfriend. She did not want the authorities to know what the dog did, out of fear that the dog would be taken away. So she did not get medical help or make a report to animal control. 

A week later, she is starting to doubt the correctness of her decisions. She wrote to me and asked whether she could get her medical bills paid. Here is what I told her:

I want to start off by telling you that I am very sorry for you. My career is all about dog bite victims. That means, however, not only you but also the kids in the neighborhood where your girlfriend lives. 

The first thing you should know is that this dog will seriously injure a young child very soon. Rottweilers and pit bulls do most of the serious killing in the USA, with regard to humans. A dog that does this to you will send the same wrong signals to a child and then will seriously alter the kid's life. 

Upon reflecting on this, consider your options. You can be a good person to your girlfriend and not report this to the animal control authorities, and leave the kids in the neighborhood open to danger. If something happens and your girlfriend goes to jail, however, you might end up not feeling too good. Yes, dog owners can go to jail when they keep a dog that is known to attack without justification. And by the way, the kid's life changes for worse too.

In the past year, many of the human fatalities by dogs have been the dogs' own owners. So not only are the kids in danger, but also your girlfriend.

On the other hand, you can tell your girlfriend to have the dog put down, and make sure it happens, thereby making both of you take a stand to show just how conscientious you are, how responsible you both are, how stand-up you both are. How interested in fairness and justice for everyone, not just yourselves.

Or you can go the other route. Find out if she has insurance, and make a claim for medical payments and liability payments against her insurance policy. Just take care of yourself and your medical bills, and forget everyone else. Let the kids in the neighborhood take their chances. Maybe they will be okay. But put the risk on them. Let the chips fall where they may, as long as you get your bills paid.

Those are your options. Now make your choice. Yes, my words are harsh. But not unnecessarily so. Do you remember Diane Whipple, the young teacher who was brutally killed by dogs in San Francisco 10 years ago? The dog that killed her had nipped and lunged at about 25 people in the neighborhood, but none of them had ever told the authorities. Only two people had actually been bitten by that dog before it killed Diane ... and she was one of them. Even she failed to report it. And then it killed her. There are other dog owners who have been killed by their own dogs in the last year. So my words are harsh, but need to be heard. 

Kenneth M. Phillips

In the past week, three dog bite victims have asked me to represent them after their original attorneys dropped their cases. All three incidents had the same feature: a dog owner with no insurance.

There are easy dog bite cases, and there are hard ones. The factors that can make a dog bite case a hard one may be things that a lawyer has never faced, no matter how long he or she has been practicing in the field of bodily injury law, including:

• A defendant that is the victim's aunt, uncle, grandmother, grandfather, best friend, or neighbor, who could be 100% in the victim's corner if approached correctly.
• A victim who is 100% against filing a lawsuit versus any of the people mentioned in the prior paragraph.
• A potential defendant that denies he has insurance.
• Witnesses who are children.
• The science of animal behavior, particularly the causes of canine aggression against human beings.
• The particulars, conflicts and simultaneous interaction of four types of laws that usually are applicable in every dog bite case: municipal ordinances, County ordinances, state statutes, and case law (including the Restatement of Law of Torts).
• "Dog court" hearings (i.e., administrative hearings or court proceedings focusing on the dangerousness of the dog and the irresponsibility of its owner or handler).
• A wide range of expert witnesses, almost all of whom are self trained, and essentially fake.
• Unique legal concepts, such as ownership of a dog, "harboring" a dog, "keeping" a dog, and provocation of a dog. Unusual legal concepts (not unique but unusual) like parental negligence in the supervision of a child, suits by children against parents, the standard exclusion for household residents in policies of homeowner insurance and renters insurance, the legal boilerplate that must be included and excluded from settlement documentation in order to ensure favorable tax treatment, and the paperwork and court presentation for the settlement of a minor's claim for bodily injuries.

All of the above topics are explored in detail on the Dog Bite Law website (www.dogbitelaw.com) and in the seminar-on-video, Anatomy of a Dog Bite Case. The purpose of this blog post is to discuss the standard of care for rendering legal services to a dog bite victim at the beginning of the relationship. While there are many things that can go wrong with a dog bite case, the focus of this article is going to be on the two threshold requirements for successful claim: a legally liable defendant, and insurance coverage. In dog bite cases, finding these things can present an attorney with unusual hurdles.

If you are a dog bite victim, you should know about these things. As you will read, there are basic facts that you can help gather so that your attorney can proceed forward with your case. Knowing the tactics and strategies set forth in this post will also enable you to monitor your lawyer's efforts and evaluate whether he or she is the capable dog bite lawyer you thought you had retained.

The hypothetical case

Let us consider a common and seemingly easy, "slamdunk" factual scenario for dog bite case. An unmarried, 30-year-old woman visited the home of a guy that she was interested in. She rang the doorbell. The guy opened the door, gave her a hug, and welcomed her inside. She saw a dog, and asked whether it was safe for her to pet it. The guy and his male roommate said that the dog was friendly. She leaned over to pet it, and it sprang at her face without warning. The teeth of the dog caught her forehead, one nostril and her upper lip, producing substantial injuries which included permanent scars and lumps. The jurisdiction has a statute commonly called a "dog bite statute" which makes dog owners legally liable for all losses and damages inflicted by their dogs. The animal control department conducted an investigation which confirmed that the roommate was the owner of the dog.

Sounded like a great case. As it turned out, however, there were complications. The first thing that the attorney did was to sign up the client. Then he sent a letter to the dog owner, asking for insurance information. When the dog owner responded by saying that he did not have insurance and was merely renting the house, the lawyer found out the name of the owner of the residence and wrote to her, again asking for insurance information. A law firm that does coverage cases responded on behalf of the owner of the house and her liability insurer, denying liability and asserting that there was no coverage applicable to the tenant.

To prosecute or not to prosecute

The victim's attorney has taken the case pursuant to a contingency fee agreement. The contract requires him to not only render services but also advance the costs of prosecuting the civil claim. At this point the lawyer is thinking about dropping the case.

If the lawyer does not terminate the attorney retainer agreement, however, he is ethically and contractually required to pursue the client's interests. The standard of care for dog bite lawyer is fundamentally the same standard of care for any personal injury attorney, with some modifications arising from the unique aspects of a dog bite case.

So, what should the lawyer do at this point? The rest of this article is about the standard of care when there does not seem to be a viable defendant in a dog bite case (i.e., a person who is liable and has insurance, assets or prospects).

Steps that the dog bite victim's lawyer should take

The first thing to do is to start looking for other owners of the dog. There are no hard and fast rules as to who the owner of a dog is. If you want it to be the person who is named as the owner on the animal control report, then look no further. An insurance company, a judge and a jury will have no trouble agreeing with the records of the animal control department or humane society. But in a case like our hypothetical example, you have to look further because this particular animal control report has specified that an uninsured person is the owner. You have to find someone else who has sufficient insurance, assets or prospects.

Thankfully, there are a lot of humane behaviors that can make a person the owner of a dog: feed the dog, let it sleep your room, teach it tricks, give it commands, walk it every day, and things like that.

Similarly, a person might own a dog that he thought he had given away. Consider a dog that comes into a household during a marriage. Both the man and the woman are listed as the owner of the dog. Then they divorce or become separated. The man retains the dog (and thinks he owns it) while the woman has what you might call visitation rights; she takes the dog to the veterinarian, walks it and keeps it at her new apartment for a couple of days per month. Odds are that she and her ex-husband will both be considered to be the owners of the dog.

This other owner does not have to be a spouse. An ex-girlfriend may still be living with her parents or may have moved back into her parents house. Anybody living in a house (other than a renter) is covered by the homeowners or renters insurance that covers the house. That means that the ex-girlfriend is covered. Under those circumstances the dog bite lawyer's job would be to go after the ex-girlfriend as a co-owner so there will be coverage by virture of her parents' insurance.

If you cannot find an insured co-owner of the dog, the next step would be to conduct an investigation to see whether the landlord is responsible for the incident in some way. Sometimes the landlord can be held responsible because he had overlooked his own rules which forbade dogs on the premises. Sometimes you have a situation where the dog has bitten other people, and the landlord, the manager or the security company who worked for them knew it. In many states the landlord has an obligation to get rid of either a vicious dog or the tenant who owns it, and if the landlord fails to do so, he can be held liable.

If you cannot find a co-owner of the dog or a landlord that can be held liable, you have to look hard at the dog owner's assets and prospects. You need to find out not only whether he owns real property, cars and boats, but also what line of work he is in, what his job title is, and what it pays. In other words, you have to engage an investigator to do an asset check. Do not stop there, however. Find out who the dog owner's parents are, determine whether they are still alive, and form a judgment as to whether the dog owner is soon going to inherit a considerable sum of money from them.

Suppose none of that works? Well, you need to file a lawsuit. In many cases, you will be pleasantly surprised when you receive a copy of the Answer, signed by an insurance defense attorney. It turns out that many dog owners are so convinced that the dog had every right to bite the victim, or that the dog did not hurt the victim, that they conceal their insurance until the last possible moment. In other cases, you will receive a phone call from a privately retained attorney, who will be more than willing to confirm that the defendants have no insurance, and to begin negotiating a modest settlement. Finally, there will be those times when the defendant defaults, and you need to discuss with the dog bite victim whether to obtain a judgment based on the default. That is a very difficult decision to make. I do not believe that the standard of care is to take a default judgment in every case, especially after determining that the defendant lacks insurance, assets and prospects.

When an uninsured defendant appears with an attorney, you need to either enter into a settlement that makes sense given the defendant's financial condition, or continue to pursue the possibility that there is insurance. There are a lot of lawyers who do not understand all of the different types of insurance that can cover personal liabilities, and take the word of laypersons when they say that they do not believe they have coverage for dog bites. You not only have the homeowner policy and the renters policy, but also umbrella policies and excess liability policies. There are even some insurance brokers who, in selling a customer "full coverage" for motor vehicle accidents, combine a low-cost motor vehicle liability policy with an umbrella policy – and the latter covers dog bites. Consider using interrogatories or taking a deposition, not only to find out what the defendant believes his insurance to be, but also to learn the name of his insurance broker so that you can go to the source and ask questions there.

Today the Minnesota Supreme Court issued an interesting ruling about the defense of provocation in the field of dog bite law. In the case of Engquist v. Loyas, the court held that under the canine injury liability statute (Minn. Ann. C. section 347.22) “provocation” is voluntary conduct by the plaintiff-victim that exposes him to a risk of harm from the dog, where he had knowledge of the risk.

This definition is both good and bad for dog bite victims. It's good because it limits provocation as a defense. Provocation has been misapplied in some cases to cover just about anything that can stimulate a response by a dog. For example, a person who whistles while he is one block away from a dog might cause the dog to jump up and thereby injure another person who is standing next to the dog. If provocation is merely defined as an act that causes a dog to respond, then the whistling could arguably constitute provocation, and could prevent a victim from receiving fair compensation for his injuries. 

The Engquist case equated provocation with an entirely different doctrine called "assumption of the risk." The latter is a defense which is based upon an appreciation of a danger as well as a voluntary act that exposes one to it. If the victim is bitten or injured because of an act on his part signifying that he has consented to the possibility of getting bitten or injured, then he is said to have assumed the risk, and therefore he cannot hold the dog owner legally liable for the payment of damages. In the context of canine inflicted injuries, the defense of assumption of the risk usually is limited to veterinarians, dog trainers and similar types of dog bite victims. Therefore the nature of assumption of the risk and the type of victim that the defense is used against are quite different from provocation.

While it is good in some ways to limit provocation to actions which assume the risk of injury, it is bad because it leaves out an essential element of provocation, namely the usual requirement of justifiable self-defense on the part of the dog. For example, if a person hits a dog with a stick or steps on its paw, the doctrine of provocation usually prevents the person from receiving compensation for his injuries. In other words, a provocative act is one which provides justification for the dog's violent reaction along the lines of self-defense. 

The Minnesota ruling focuses on assumption of the risk but leaves out the element of justifiable self-defense. The Engquist case itself demonstrates the harm that this new definition of provocation might case. The little girl in this case was bitten while attempting to pet a friend's dog in a dark area. Engquist holds that the jury is entitled to decide whether the girl provoked the dog and therefore should be barred from receiving compensation for her injuries. This is unfair to the girl because she did not do anything truly provocative -- that is, anything that would justify a violent act of self-defense on the part of the dog.

In leaving out the essential element of self-defense from its new definition of provocation, the Minnesota Supreme Court has expanded the definition of this defense, while at the same time limiting it to situations involving assumption of the risk. This case therefore is both bad and good for victims. 

The Supreme Court of the State of Rhode Island recently ruled that the owner of a chained dog which violently attacked a Pawtucket city inspector could not be held liable under the state's strict liability dog bite statute or even under a theory of premises liability. (Read the decision in the case of DuBois v. Quilitzsch by clicking here.) The court's decision was based on the wording of the statute itself. The law imposes strict liability when the attack happens while the dog is "traveling the highway or out of the enclosure of the owner or keeper of that dog." On the other hand, there is a loophole: when the victim is within “a fence, physical obstruction or any other condition that gives reasonable notice to third parties that the area is private” then the dog bite statute does not apply.

In making these rulings, the DuBois court repeatedly referred to the fact that in recent times the state legislature had passed other laws regarding dogs but had not modified the state's dog bite statute to impose liability upon dog owners for all bites under all circumstances. "We continue to be of the opinion that any modification to our dog bite law is best left to the General Assembly," the court wrote.

This is a call to action. The legislature should pass, and the governor should sign into law, an amendment to the state's dog bite statute that eliminates the loophole which enables dog owners and their homeowners insurance companies to escape paying fair compensation to dog bite victims. Why should a dog owner be protected from liability when, for example, he chains up a dog (which causes biting) or allows a dog to concealed itself from people who are lawfully on the premises? In the DuBois case, both of those features were present: the defendant had chained up his dog and the dog sprang out at the victim from a hiding place under some grapevines. 

The General Assembly of the State of Rhode Island should amend the dog bite statute without further delay. Strict liability for dog bites creates an atmosphere of vigilance, while protecting dog owners from paying just compensation to victims contributes to an atmosphere of injury. In a country that believes in accountability and personal responsibility, it is hard to understand creating loopholes or allowing identified loopholes to continue to exist for people who fail to control their animals. Two-thirds of the American states have dog bite statutes, most of which are unforgiving. There is no justification for forcing dog bite victims to bear not only all the pain, but also all the expense of their injuries.