Oregon holds dog owners liable for dog bites caused by negligence, violating an animal control law like a leash law, or keeping a dog known to be vicious toward humans.
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
Oregon holds dog owners responsible for their negligence if it results in a dog bite injury or an injury caused by tripping, frightening or knocking down the victim. (Westberry v. Blackwell, 282 Or 129, 133, citing Restatement (Second) of Torts, § 518.) Section 518 provides: "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."
Medlyn v. Armstrong, 49 Or.App. 829 (Or.App. 1980), a young child was bitten in the face by a dog that had been eating. There was no evidence of provocation or of attempting to take the dog's food away, that that the dog had ever bitten a person before this incident. However, the defendants were aware that their dog became very aggressive when around food. For that reason, the court held that the jury could properly determine that it was negligent to permit a young child to be in the vicinity of the dog when food was present. The duty to confine the animal applies when the owner has "knowledge or a basis for knowledge ... that the dog will behave in a potentially injurious manner." Kathren v. Olenik, 46 Or.App. 713, 719. In that case, the court said:
Negligence, in terms of an omission to confine or control an animal, is based on a duty to take reasonable precautions to prevent a foreseeable risk of injury by the animal. Negligent failure to control or confine a dog must be analyzed in terms of the knowledge on the part of the owner that the dog will cause the injury actually incurred by plaintiff if it is not controlled or confined. (Id.)
The Kathren court placed great reliance upon the comments to Restatement (Second) of Torts, section 518. Comment (g) states, "[i]n determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics." Comment (h) adds the following:
One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm. Thus the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects and must exercise greater precautions to keep his bull under complete control if he drives it upon a public highway. So, too, the keeper of an ordinarily gentle bitch or cat is required to know that while caring for her puppies or kittens she is likely to attack other animals and human beings.
Negligence per se for violating an animal control law
In addition to scienter and general negligence, Oregon holds that the violation of an ordinance that prohibits dogs from running at large can form the basis of a claim for negligence per se. Lange v. Minton, 303 Or. 484 (Or. 1987). An ordinance that makes it unlawful for any owner or custodian "to cause, suffer or permit an animal to run at large" implies some element of fault -- knowledge, consent, willingness or negligence -- on the owner's part that the dog run free. (Id.)
The one-bite tule
If the victim cannot prove negligence or violation of an animal control law, generally the victim has to prove the elements required by the "one bite rule." (See The One Bite Rule and Legal Rights of Dog Bite Victims in the USA. Also see Kathren v. Olenik, 46 Or.App. 713, 613 P.2d 69 (Or.App. 1980); Westberry v. Blackwell, 282 Or 129, 133, 577 P2d 75 (1978); Chance v. Ringling Bros., 257 Or 319, 478 P2d 613 (1970). "If the owner knows or should have known the dog will bite a person he is charged with a duty to prevent the biting." Kathren, supra at p. 723. "The general rule is that the owner of a dog or other domestic animal is strictly liable for injuries caused by the animal only if the owner knows or has reason to know of the animal's dangerous propensities." Westberry, supra. The court in Westberry referred to the formulation of this rule in the Restatement (Second) of Torts, § 509:
"(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."