Should You Pay for Day Care After Their Dog Bites Your Child? No!

Kids get bitten by dogs in day care. I have gently asked whether it is folly or fair to bring a dog to into a day care center, have stated it is negligent to allow a pit bull into a day care center, and have also stated that allowing any dog into a day care center is negligent.

One of the worst aspects of this problem has to do with insurance coverage for day cares. Homeowner policies often exclude coverage for accidents that occur during the course of any business carried on in the home, which includes a day care (for payment). No only is homeowner coverage lacking, but many states have neglected to require day care centers to have any liability coverage at all. 

Today a single mom wrote to me about getting sued by a day care where a dog bite her child. Not only that, but the day care did not tell the mom; she had to find out on her own. Here is her question to me, and my reply (certain changes have been made to ensure anonymity):

TO MR PHILLIPS

Hi my daughter was bit by a dog at her daycare and the daycare provider did not tell me about it. my daughter whos 3 told me on a monday night because the cut hurt her from the bite. I told the day care provider I was going to find another day care for both of my kids. I found 2 new daycares for both of my kids. I didn't want to continue taking them back to her it was uncomfortable and worrysome for me. Now she is saying she is going to sue me for the full amount I had agreed to pay her for the days that my kids are not even going to be there because of being in the new daycare. Can you tell me what the law is?

REPLY BY MR PHILLIPS

I'm sorry to hear about this. Here are the general principles of law that are followed in USA, the UK and Australia (I don't know where you are writing from).

One does not have to perform a contractual agreement when there has been a "material breach of contract." In a day care center, the safety of children is a "material" term of the contract. "Material" means "essential."

In my view, there were two material breaches of contract here: first, the bite, and second, the cover-up. Therefore, if I were the small claims court judge, I would rule in your favor.

That is all I can tell you. I can't predict what actually would happen if you did not pay. Nor can I advise you one way or another, because I simply don't know what the outcome will be in your jurisdiction. I just know what it SHOULD be.

Friends Do Not Let Friends Keep a Vicious Dog

Today a lady sent me two photos and wrote to me about getting attacked by a friend's dog. The photos showed bites (not one, but two) on the face, a completely shut eye (because of a pool of blood that swelled up her face), and bite wounds on her throat. Her question to me was whether she was responsible for getting attacked.

She explained that she loves dogs, that her friend loves dogs, and that this was a rescued Doberman with a tragic history of going to homes that could not care for it. As I read her email, however, I began to get an entirely different impression: this was a vicious dog, her friend is in danger, and this dog bite victim needs to do something about this right away. Here is the exchange of email, with identifying information removed from it:

MESSAGE FROM "WENDY" TO MR. PHILLIPS:

I am contacting your office because of being biten by a doberman while visiting a friend. 

I did not want to hurt my friendship with a longtime friend. She received a dog from rescue a little over 3 months ago although he was never formally in a shelter or situation like that. First owner was in an accident and could not keep him so the wife gave him to rescue while he was in the hospital. He then went to a rescue home with someone who was gone from the home 16 hours a day for over 1 year. In early June he went to my friend. He is a large 4 year old doberman and a lovely dog.

I have not given Animal Control his identity because my friend is a cardiac patient and very sick. She told me from the beginning it was all my fault. The dog jumped up on the couch after we sat. As soon as I touched the dog it bit under my ear into my neck and jaw, my forehead and skull causing severe bleeding and pain. I was able to get out the door where I collapsed in a chair, stunned and in shock and bleeding all over the place. I told her I thought I should have a paramedic and she did not call one. She begged me not to seek medical care so I did not until the next afternoon. Bottom line. Am I responisible for the attack?

Thanks, Wendy

MR. PHILLIPS' REPLY TO "WENDY"

I am sorry to hear about this. What might you be responsible for? I have an answer for you: the next victim.

This is a vicious dog. It tried to bite your throat. It tried to kill you. It bit you not once but twice.

This dog was not given up because someone went to the hospital and didn't have time for it. It was given up because it was vicious. The sob story about the owner being too sick to take care of it was a lie.

This type of story is happening today all over the country because of the "no kill" movement, which says that no dogs in a shelter should be put down. Well, some have to be.

Right now, a lady is sitting in jail for 20 years because of a dog that had never bitten anyone but had snapped at two people, but then killed a woman. So two women's lives were taken away or ruined because nobody did anything about that dog. (I am referring to Marjorie Knoller, who was convicted of second degree murder in the death of Diane Whipple.) 

If you care about your friend, about children in the neighborhood, and about older people who can't defend themselves from dangerous dogs, you will report this to animal control and tell your friend to get real about her situation: she owns a vicious dog, it could turn on her, it could hurt someone, and if it does, she might face criminal charges because of the demonstrated viciousness of the animal.

Right now you can do something about this. Later, you won't. If something happens to anyone else or to your friend, you will wish that you did.

Kenneth Phillips

Emotional Distress from Willful Killing or Injuring a Dog Is Now Recognized in California

Last week California law shifted significantly in favor of people who love their dogs, and in favor of the dogs themselves. In an important and long awaited decision, a Court of Appeal (the second highest court in California) ruled that a defendant must compensate for the emotional distress sustained by reason of his willfully killing or injuring another person's pet dog. The case is Plotnik v. Miehaus. 

Previously, this state (like most others) largely stood in the way of pet owners who asked for justice when their companion animals were hurt by the fault of another person. Dogs were regarded as mere property, like ashtrays or car tires, so if one was injured or destroyed by a wrongdoer, he had to pay only the cost of a replacement or the market value. (How much do you want for one used dog?)

Some states have been making changes in this insensitive line of decisions. Here in California, the law had been widened last year when a court ruled that the defendant who negligently injured a dog had to pay the medical bills. In Kimes v. Grosser (2011) 195 Cal.App.4th 1556, it was held that a pet owner could recover "the [reasonable and necessary] costs of care of the pet attributable to the injury" caused by another. (Id. at p. 1558.) The Kimes case was also ground-breaking.

Courts have been balking, however, at giving full compensation to dog owners under all situations where their dogs are wrongfully injured or killed. The appellate court in Plotnik agreed with the decision in McMahon v. Craig (2009) 176 Cal.App.4th 1502, which held that a pet owner could not recover damages for emotional distress or loss of companionship based on a veterinarian's negligent treatment that resulted in a dog's death. (Id. at pp. 1506, 1509-1515.) 

This case is important on an additional level. When dog owners can recover monetary damages for emotional distress, it is not they who are the only beneficiaries, but also dogs in general. The reason is that people now know that they cannot intentionally mistreat another's dog and count on the overworked criminal justice system to give them a free pass. Yes, they might not go to jail, but they will have to pay compensation for their misdeeds. 

If your dog is injured or killed, you can get justice with the assistance of my self-help book, What To Do If Your Dog Is Injured Or Killed. It is available at the Dog Bite Law Bookstore where it can be downloaded instantly. 

Adoption and Rescue Groups Should Be Licensed

A college student who had a passion for rescuing dogs is dead, killed by the same dogs she wanted to save. (See Rebecca Carey, Georgia Student, Killed by Dogs She Rescued.) The breeds of the dogs are interesting: two pit bulls, a boxer mix and two Presas.

All rescues. She was out to prove a point, namely that breeds known for their violence toward people can be tamed with enough loving care. Unfortunately she was going about it the wrong way. One of those dogs, in the hands of a skilled behaviorist, would be risky enough during the training, and would remain a safety hazard afterwards. But trying to deal with 5 of them at once? 

Remember, a rescue dog is an abandoned dog. One must wonder why the dog was abandoned. Was there a reason why it was sent to the animal shelter? It is folly to assume that only bad people abandon their dogs. When a dog is violent toward people, good parents, good animal control officers, and good cops send the dog to the shelter. Not all abandoned dogs are good dogs. 

As one of many rescuers who have been injured or killed by dogs in the recent past, Rebecca Carey has helped to prove two other points. One is that we need to enact restrictions on the number of dogs that can be kept at a residence. 

There are laws that forbid people from having more than a certain number of dogs. Generally these are considered to be zoning restrictions but such laws also are safety laws. Not only for the safety of the person who has the urge to hoard animals, but also for the safety of friends and neighbors. It has been established that there is a pack instinct in dogs and that normally docile dogs can become aggressive toward humans when the dogs act in concert. For that reason, and to prevent a person from going out on the street with 5 leashes attached to 5 muscular dogs, I have urged the enactment of laws restricting the number of dogs that can be present at a residence, with the number being sharply reduced in the case of larger, more muscular dogs, including pit bulls, Presas, Rotties and the like.

The other point is that adoption and rescue groups need to be licensed.

I am hearing, almost daily, about unsuspecting people who adopt a dog, get attacked by the dog, and then learn that the adoption organization knew that the dog was violent toward people but did not provide a warning about the dog. People like Rebecca Carey -- I call them "humaniacs" -- do not recognize the dangers inherent in such dogs. For that reason, I am urging the enactment of laws that regulate adoption organizations, to the extent necessary to make all of them accountable and to prevent the humaniacs from recycling known dangerous dogs into communities.

Pass Laws Requiring Dog Owners To Have Insurance

"My four-year-old son was attacked by a Rottweiler. The dog owner rents her home and recently filed for bankruptcy. We are struggling to pay all of the bills, and my son now is afraid of dogs and he has scars. Is this true justice? Any suggestions would be welcome!"

I receive e-mail messages like this every single day. Here is what I have to tell parents:

"I am sorry to say this, but you are not going to be able to get anything for your son. What you do not realize, and what the public does not realize, is that our lawmakers have already decided that this is Justice.

"What do I mean? We let everybody have a dog, even a pit bull or Rottweiler, without demanding that they show proof of insurance. So, when a person gets bitten and there is no insurance to cover it, the victim suffers and the dog owner is completely unscathed unless the animal control department imposes a fine (which is rare, and the fines are small). The victim has to pay the medical, ambulance and other bills, and the dog owner has to pay nothing. This is Justice, according to our lawmakers.

"Why does this happen? The insurance industry announces every year that only 15,000 to 16,000 Americans are being compensated through insurance policies for homeowners and renters, despite the fact that around 400,000 Americans go to the emergency room every year because of dog bites, 800,000 Americans are bitten by dogs every year, and 30 to 35 Americans are killed by dogs every year. Those of us who study this problem are appalled by it. For more than a decade, I and other experts have been asking lawmakers to to pass laws which would require insurance on the part of dog owners. Except in rare instances, our lawmakers have declined to do so. So the fact of the matter is that our lawmakers have decided that what is happening to your son and your family is Justice.

"If you want to do something about it, you have to contact your lawmakers and tell them that you think this is not Justice, that dog owners have to provide proof of insurance just like car owners do."

NY Must Change Its Dog Bite Laws But Not Like This