New Mexico is a one bite state. Liability is based on scienter or negligence.
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
New Mexico does not have a dog bite statute. There are two basic grounds for liability: scienter under the one bite rule, and negligence.
The scienter cause of action is the flip side of the English one bite rule. An owner of a dog is liable for damages proximately caused by the dog if the owner knew, or should have known, that the dog was vicious or had a tendency or natural inclination to be vicious. Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953). This imposes strict liability on the dog owner. Smith v. Village of Ruidoso, 128 N.M. 470, 994 P.2d 50 (Ct. App. 1999).
The key to the scienter cause of action is the owner's knowledge of the dangerousness of his dog. "Scienter" is Latin for "knowledge." If the dog owner did not know (or could not have reasonably come to the conclusion) that the dog had the dangerous propensity to bite or otherwise injure people, there will be no liability to the victim.
The dog's conduct toward other animals is irrelevant. The vicious propensity of the dog must have been previously manifested against a human being. It is insufficient that the dog exhibited vicious tendencies toward other animals.
New Mexico also imposes liability upon a dog owner whose negligence caused injury to the victim. A negligence claim under 41-4-6 NMSA 1978 is appropriate where the dog owner lacks knowledge of the dog's vicious propensities and ineffectively controls the animal in a situation where it would reasonably be expected that injury could occur. Smith v. Village of Ruidoso, 128 N.M. 470, 994 P.2d 50 (Ct. App. 1999).
Negligence per se
Because New Mexico imposes liability on the basis of negligence, it can be assumed that liability would be imposed on the basis of negligence per se.
Provocation as a defense
New Mexico has an unusual variation of the provocation defense, in that it requires proof of scienter on the part of the victim. Provocation coupled with scienter on the part of the victim will preclude the owner's liability. The owner of a dog is not liable to the person injured, if the injured person had knowledge of the propensities of the dog and wantonly excited it or voluntarily and unnecessarily put himself in the way of the dog.
Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953)
Torres v. Rosenbaum, 56 N.M. 663, 248 P.2d 662 (1952)
Aragon v. Brown, 93 N.M. 646, 603 P.2d 1103 (Ct. App. 1979)
Smith v. Village of Ruidoso, 128 N.M. 470, 994 P.2d 50 (Ct. App. 1999)
The killing of a dog is lawful under certain circumstances
The state allows, but does not require, peace officers to "kill any dog in the act of pursuing or wounding livestock or wounding and killing poultry or attacking humans." Section 77-1-9, subd. (B).
Laws relating to dog and livestock
The state protects livestock from dogs:
77-1-2. Dog killing or injuring livestock; damages; dog to be killed
If any dog shall kill or injure any livestock, the owner or keeper of such dog shall be liable for all damages that may be sustained thereby, to be recovered by the party so injured before any court having competent jurisdiction, and it shall be unlawful to keep such dog after it is known that the dog is liable to kill livestock, and it shall be the duty of the owner to kill, or have killed, the dog upon order of the court after a finding that the dog has killed or injured livestock, and provided further, that it shall be the right of any owner of livestock so killed or injured by the actions of any dog to kill the dog while it is upon property controlled by the owner of the livestock.