Texas Dog Bite Law

A dog bite victim in Texas can recover compensation under the doctrines of negligence, negligence per se, scienter and intentional tort. The failure to stop an attack in progress also is actionable in Texas. There is no dog bite statute so this is a "one bite state."

• Overview
• Bystander claims for mental anguish
• Litigation forms and other materials for attorneys
• If your case involves injury to a dog, see What To Do If Your Dog Is Injured or Killed

Overview

There are a number of causes of action available to the victim of a dog attack in Texas.

Texas adheres to the so-called "one bite rule." Marshall v. Ranne, 511 SW 2d 255 (Tex: Supreme Court 1974). The Marshall court specifically relied upon Restatement of Torts section 509, which sets forth the traditional doctrine that makes a person liable for harm inflicted by a domestic animal. It is referred to as "scienter" (the Latin word for "knowingly"), "common law strict liability," and "the one bite rule." As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer or keeper of a dog if (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog's previous conduct. If either of those conditions are not met, however, the victim cannot employ this doctrine as a ground for recovery.

In Lewis v. Great Southwestern Corporation, 473 S.W.2d 228 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n. r. e.), the court expressed the rule in the following manner: "The owner of a dog is not liable for injuries caused by it, unless it is vicious and knowledge or constructive notice of that fact is shown or brought home to the owner."

For more information about this doctrine, see The One Bite Rule.

Texas does not have a dog bite statute. Critics have asserted that not having a dog bite statute is at odds with modern American beliefs about personal responsibility, because the one bite rule shields a dog owner from liability each time one of his dogs bites a person for the first time unless it can be proved that the owner knew that the dog had the propensity to bite people without justification. See Criticism of the One Bite Rule. Whether one agrees with these critics or not, it nevertheless is true that a dog bite victim has more to prove in the absence of a dog bite statute.

This state also permits a dog bite victim to recover compensation on the ground of negligence. Marshall v. Ranne, 511 S.W.2d 255, 259 (Tex.1974). In the Marshall case, the court stated that an owner of a non-vicious animal can be "subject to liability for his negligent handling of such an animal." Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person is negligent. For example, letting a stray dog into a day care center is negligence. "To recover on a negligent handling claim, a plaintiff must prove: (1) the defendant owned or possessed an animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the defendant's breach proximately caused plaintiff's injury." Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex.App.-Waco 2002, no pet.). The negligence cause of action makes it unnecessary to prove that the dog previously bit a person or acted like it wanted to. Id.; Dunnings v. Castro, 881 S.W.2d 559, 562-63 (Tex .App.-Houston [1st Dist.] 1994, writ dism'd). For more information about negligence, see Negligence.

In Texas, the violation of an animal control law can result in liability on the part of the violator, whether or not he owns the dog. States, counties and cities often have laws requring dogs to be on leash, or prohibiting them from being at large or from trespassing. With few exceptions, courts have ruled that violating such laws can be the basis of liability. In this state, the violation constitutes negligence per se. To prevail on a claim, the litigant alleging negligence per se must show that there was a violation of a statute or an ordinance. See Moughon v. Wolf, 576 S.W.2d 603, 603 (Tex. 1978) (citing Missouri Pac. R.R. v. American Statesman, 552 S.W.2d 99, 102 (Tex. 1977)). The plaintiff must prove that the violation was the cause of his injuries. Searcy v. Brown, 607 SW 2d 937 (Tex: Court of Civil Appeals, 1980) (finding no negligence or negligence per se in allowing dogs to run at large on the owner's property). 

In cases involving a dog that is at large, it is not necessary to prove that doing so was a violation of an ordinance, if the defendant had actual or constructive knowledge that would "put a person of ordinary prudence on notice that permitting his dog to run at large might cause injury to another." Dakan v. Humphreys, 190 S.W.2d 371, 373 (Tex.Civ.App-Eastland 1945, no writ), disapproved on other grounds by Marshall v. Ranne, 511 S.W.2d 255, 257-58 (Tex.1974).

Texas supports the cause of action for failing to stop a dog attack after it has begun. In Bushnell v. Mott, 254 SW 3d 451 (Tex. Supreme Ct., 2008), the Supreme Court made it clear that liability on this ground can occur even if the requirements of the one bite rule and the negligence cause of action cannot be met.

A landlord or landowner in this state can be held liable for failing to rid premises of a known dangerous dog. In Baker v. Pennoak Properties, Ltd., 874 S.W.2d 274, 277 (Tex. Ct. App. 1994) the Court of Appeals of Texas noted that "a lessor retaining control over premises used in common by different occupants of his property has a duty to exercise reasonable care to keep those common areas reasonably safe for the use of tenants and their guests." 874 S.W.2d at 275. This duty includes "protecting tenants from known vicious dogs." 874 S.W.2d at 277. The Baker court set forth a two-part test: "(1) the injury must have occurred in a common area under the control of the landlord; and (2) the landlord must have had actual or imputed knowledge of the particular dog's vicious propensities." Id.

Bystander claims for mental anguish

Texas recognizes the right of bystanders to recover damages for mental anguish caused by witnessing an accident, with the following limitations: the bystander must be closely related to the victim (such as his sibling, parent or child), and the victim must have been killed or severely injured. 

In Texas, "a claim for negligent infliction of mental anguish that is not based upon the wrongful death statute requires that the plaintiff prove that he or she was, among other things, located at or near the scene of the accident, and that the mental anguish resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the incident, as contrasted with learning of the accident from others after the occurrence." Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex. 1990), citing Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988).

In Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993), the court adopted the bystander rules originally promulgated by the California Supreme Court in Dillon v. Legg, 68 Cal. 2d 728 (Cal. 1968). The Dillon case holds that liability depends on -

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;

(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and

(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

The Boyles case also established that a person who suffered emotional distress is not required to prove that he also had some type of physical manifestation of the emotional distress.