The "one bite rule"

The first time that a canine attacks a human being, the paramount legal issue is the extent to which the state having jurisdiction adheres to the English common law pertaining to injuries inflicted by domestic animals.

The common law shielded the owner of a domestic animal from civil liability to the first victim of each of his animals. This absolving principle came to be known variously as the "one bite rule," the "first bite rule," or the "first bite free" rule.

However, it has been repeatedly stated in the court decisions that the name "one-bite rule" is a misnomer, in that the rule applies to any injury whether or not it was caused by a bite, and that proof of the dangerous propensity of the animal does not require the existence of a prior bite even in a biting case.

The rationale of the one bite rule was that domestic animals by definition were not injurious, and therefore liability could be predicated only on the defendant's knowledge that a particular animal had a propensity to behave in manner that was injurious to humans. Again, the rule applied to any type of injury, whether or not a bite.

The rule provided not only a shield for the animal's owner but also a sword for its victim, because it justified compensating any victim -- after the first one -- who was injured by the same dangerous propensity. The owner, keeper or harborer of the dog thus was held strictly liable when his domestic animal injured a subsequent person the same way it hurt a prior one.

English common law strict liability for canine inflicted injuries therefore was founded on the defendant's scienter (i.e., knowledge) of his dog's dangerousness. For that reason, this is often referred to as the "scienter cause of action," or as "common law strict liability." Since the gist of the tort, "is the keeping of a thing known to be dangerous, one who keeps or harbors an animal owned by another may be liable, if he has such knowledge. A bailee with scienter is of course liable." Prosser or Torts, chapter 10, section 57, page 441. The scienter cause of action can be directed against not only the dog's owner, but also its harborer or keeper:

"A person, although not the owner of a vicious dog, may make himself liable to others by knowingly keeping or harboring the dog upon his premises, after knowledge of his vicious propensities, and this is true even when such keeping is without the consent and against the wishes of the animal's owner. ... The owner of an animal is the person to whom it belongs. Whether or not a person is a keeper depends upon the peculiar facts and circumstances of each individual case. A man may own an animal and yet not be its keeper. The word 'keeper' is equivalent to 'the person who harbors.' Harboring means protecting. So one who treats a dog as living at his house, and undertakes to control his actions is the owner or keeper within the meaning of the law; but the casual presence of an animal on his premises, if not so treated, does not constitute him such owner or keeper." (3 C.J.S. 1266, § 165.)

The one-bite rule underlies civil and criminal actions in modern America. When a person is bitten by a dog, 18 American states (listed in Legal Rights of Dog Bite Victims in the USA) use the one-bite rule to determine legal liability. The other 32 and the District of Columbia have abrogated or modified the one-bite rule by so-called "dog bite statutes." (The list of those states also is in Legal Rights of Dog Bite Victims in the USA.)

The dog bite statutes vary greatly. They might or might not apply to keepers and harborers as well as owners, and to injuries by means other than biting. They might provide for full compensation, or payment of just medical bills, or payment of medical bills and other economic losses (like loss of income), or double compensation under some circumstances. Some do not apply during the day, or if the dog owner posted a "bad dog sign," or if the victim had provoked the dog weeks before. Even though they are worded as strict liability laws, moreover, the court decisions permit a variety of defenses that vary from state to state. If the state law strict liability does not apply to a particular defendant, or does not provide sufficient compensation, the victim can still assert the scienter cause of action, because it is always available in every state.

In addition to civil laws, criminal laws which apply to the owners, keepers and harborers of dogs are generally based upon the one-bite principle, in that criminal liability usually does not result from dog attacks unless the dog previously engaged in similar behavior.

Video of Attorney Kenneth Phillips testifying against the one-bite rule can be seen at the website of the Tennessee State Legislature. The video will start in Windows Media Player. Several witnesses testify, and some of the footage is graphic and upsetting. Phillips' segment begins at minute 38, his presentation about the one-bite rule lasts 5 minutes, and his entire testimony runs approximately 12 minutes. Later in the video, he also answers questions from several senators.