Texas Dog Bite Law

Texas is a "one bite state."

• Overview
• The new dog laws of Texas
• Bystander claims for mental anguish
• Negligence based on failure to stop attack - the Bushnell case
• 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

Texas follows the ancient and outdated "one bite rule." This means that legal liability for a dog bite is based on one of the following circumstances: (a) the owner knew that the dog had bitten someone previously or had the dangerous propensity to bite a person, (b) the accident was cause by the negligence of the person handling the dog, (c) the accident was caused by a violation of a leash law, prohibition against dogs trespassing or running at large, or a similar animal control law, or (d) the injury was caused intentionally by the person handling the dog.

When it is not possible to prove that the dog owner was aware of its dangerous tendency to bite people, the victim can base his claim on negligence. For a short but complete discussion of negligence, see Legal Rights of a Dog Bite Victim. An example of negligence would be keeping a dog such as a pit bull or Rottweiler in a day care center; the owner of the day care center will be held liable if the dog bites a child.

There is a particular form of negligence that is referred to as "negligence per se." This cause of action arises when a dog owner or dog handler violates an animal control law in the municipal code or county code. The violation of the criminal or quasi-criminal law constitutes a tort, which forms the basis of the victim's claim.

For example, in one case a dog owner let his dog out without a leash, and it attacked a little girl down the street who was walking her puppy on a leash; under those circumstances, the dog owner was held liable for injuries to the girl and her little dog. The courts of Texas have recognized that the unexcused violation of a statute or ordinance constitutes negligence per se if the statute or ordinance was designed to prevent injury to a class of persons to which the injured party belongs and it has been determined appropriate to impose tort liability for violations of the statute. See Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998) (citing Praesel v. Johnson, 967 S.W.2d 391, 395 (Tex. 1998)); Chapa v. Club Corp. of Am., 737 S.W.2d 427, 429 (Tex. App, Austin 1987, no writ).

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 cause of action for negligence per se is one of the most important tools available to the dog bite victim. However, it requires that the city or county have strong animal control laws, such as a leash law, a law prohibiting dogs from running at large, or an anti-trespass law pertaining to dogs. It is important that local governments pass such laws without loopholes enabling dog owners to easily escape responsibility.

For example, a law prohibiting dogs from running at large or trespassing should not use the words "allow" or "permit." The mere act of being at large or trespassing should create the liability, while the penalty can be tied to the owner's knowledge or actions, as well as injuries caused by the dog while it is off the owner's property. If the dog gets out and causes no injury, the result might be an infraction with a $25 fine, but if it gets out and causes severe bodily injury, the punishment should be a misdemeanor. The basis for imposing strict criminal liability is that it requires a high degree of vigilance on the part of the dog owner, which is what society deserves and now demands.

The new dog laws of Texas

As of September 1, 2007, two significant new dog laws take effect in Texas. Their intent is to help keep dangerous dogs off the streets, and prevent dogs from becoming dangerous in the first place. Unfortunately, however, both laws have very serious shortcomings. These are discussed below.

Lillian's Law

The so-called "Lillian Stiles Law" was introduced by Rep. Dan Gattis. It increases the jail time for owners who fail to reasonably secure their dogs, resulting in serious bodily injury or death. The new law will do absolutely nothing for victims, however, who will have to pay their own medical bills, will receive nothing to minimize the effect of their scars, and will not be compensated for pain, suffering, lost income, loss of earning capacity, disability or anything else.

To read the text of "Lillian's Law," click here. To read the official analysis of it, click here. The penalties for any violations of the Texas Penal Code can be read by clicking here.

During the debates about this new law, much appeared in the press about the Gattis bill and the "one bite rule." Everything that was said and written about how the bill would change the "one bite rule" was misleading. "Lillian's Law" neither eliminates the "one-bite rule" nor makes any substantial change to the existing law of Texas, with one exception: it contains the harshest criminal penalties in the nation for dog owners.

There are three glaring errors in "Lillian's Law." The first one is cruelly ironic: it preserves the defense that enabled Jose Hernandez to escape conviction for the death of Lillian herself. Conviction is not possible unless there is proof beyond a reasonable doubt that the dog owner knew or should have known that his dog was going to cause death or severe bodily injury. In the Lillian Stiles case, Hernandez convinced the jury that he did not have the necessary culpability because he was unaware that his six pit bull/Rottweiler mixes were dangerous. That loophole is in the first subpart of section (A) (i.e., Sec. 822.005(A)(1)), which requires proof of "criminal negligence." Penal Code sec. 6.03(d) defines "criminal negligence" as follows:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Therefore, conviction under "Lillian's Law" requires proof of criminal culpability on the part of the defendant. The prosecutor must establish that the dog owner ought to have been aware of a substantial and unjustifiable risk that a person would be killed or severely injured by his dog. This loophole enabled Jose Hernandez to be found not guilty for the brutal mauling of Lillian Stiles.

There is another terrible irony in "Lillian's Law." By requiring prosecutors to prove that the defendant was "aware of a substantial and unjustifiable risk," this is the same type of proof required under the "one-bite rule." However, the bill arguably requires even greater proof than the old English rule. Under the traditional "one-bite rule," a dog bite victim must prove that the dog owner was aware of the dog's tendency to bite people, even if no bite occurred in the past. "Lillian's Law" requires proof of awareness of the risk of serious bodily injury or death, far more than just a bite. Texans therefore have a law that is harder to apply than the old English precedents which the majority of American states have rejected.

Secondly, "Lillian's Law" deals only with a dog running at large, or a dangerous dog that is not confined. If one of those conditions are not met, the law does not apply at all. For example, if a child gets bitten by the neighbor's dog while the child is playing with the neighbor's kids, in their back yard, there would be no offense (and neither civil nor criminal liability) unless there is sufficient proof that the dog had the tendency to bite people and the owner was aware of it.

Third, the second subpart of section (A) (i.e., Sec. 822.005(A)(2)) requires proof that the dog already had its "one free bite." In other words, it is literally about a dangerous dog. This adds nothing to dog bite law in general. Interestingly, however, there is something that it takes away: a defense is created against injuries caused by a dangerous dog that is enclosed. While this might appear fair, it is more restrictive than the common law doctrine established by those English judges in the 1600s. The "one bite rule" holds that keeping a dangerous dog makes the owner responsible for any and all injuries caused by the dangerous behavior that the dog was known for, which in this context would be the tendency to bite people. Under the "one bite rule," there is no automatic defense if the vicious dog is in an enclosure. "Lillian's Law" creates such a defense.

Perhaps this law will aid prosecutors and dog bite victims under some limited circumstances. However, the effect of passing the wrong law is that little or no attention will later be given to enacting the right one. This is the wrong law because it does not go far enough. Aimed at criminalizing certain specific behavior, it is a penal provision that neither mentions nor does away with the inhumane "one bite rule." Therefore, it can hardly be expected to deter irresponsible dog owners, who will continue to be protected from liability until the second mauling or killing by their dogs.

Unfortunately, the sense of outrage and fear that fueled the passage of the Gattis bill was wasted on a poorly drafted criminal provision. The state still needs to completely abolish the "one bite rule." Changes need to be made to both the civil and criminal laws. Texas needs to align itself with the majority of American states (31 states) that have already made the first bite a tort, instead of England (the home of the "one-bite rule"). When irresponsible dog owners learn that they will be held fully responsible for all the harm that they cause, including the medical bills and other losses, it is very likely that the state will see fewer dangerous dogs on the streets.

Unlawful restraint of dog

It now is well established that chaining a dog is cruel to the dog and creates danger to people, because dogs normally become more aggressive when chained. "Chaining" means tying up the dog to an object such as a tree, a stake, a parking meter, etc. To read more about chaining, see Why Dogs Bite People.

George "Buddy" West introduced an anti-chaining law that unfortunately was severely watered down in the legislative process. Originally, the law contained a section stating that a dangerous dog should be tied up no longer than is necessary to protect other's safety. This is the recommended language for such a law. As passed, however, the new law prohibits the restraint of a dog to a permanent object at night, or in bad weather conditions, or within 500 feet of a school.

Texas still allows a dog to be chained, which is bad policy -- and dangerous to kids and others who are routinely attacked by dogs which have been chained.

To read the text of the West bill, click here. To read the official analysis of it, click here.

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 a parent or child of the victim, 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).

Reagan was approved in Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). The Boyles court stated:

[O]ur holding does not affect the right of bystanders to recover emotional distress damages suffered as a result of witnessing a serious or fatal accident. Texas has adopted the bystander rules originally promulgated by the California Supreme Court in Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 920, 69 Cal. Rptr. 72 (Cal. 1968):

(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.

Freeman v. City of Pasadena, 744 S.W.2d 923 (Tex. 1988). See also Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex. 1990). The policy concerns that require limiting the emotional distress cause of action in the direct victim case generally do not apply in the bystander case. Before a bystander may recover, he or she must establish that the defendant has negligently inflicted serious or fatal injuries on the primary victim....

We also are not imposing a requirement that emotional distress manifest itself physically to be compensable. As explained in Garrard, the sole purpose of the physical manifestation rule is to ensure the genuineness of claims for emotional distress.730 S.W.2d at 652. Garrard criticized this requirement as both under- and overinclusive, id., and we agree. See Julie A. Davies, Direct Actions for Emotional Harm: Is Compromise Possible?, 67 Wash. L. Rev. 1, 24-25 (1992) (the physical manifestation rule "has been criticized on the ground that it has no obvious relation to emotional harm"). Where emotional distress is a recognized element of damages for breach of a legal duty, the claimant may recover without demonstrating a physical manifestation of the emotional distress. This has long been the rule, even before Garrard. See, e.g., Leyendecker & Assocs., Inc., v. Wechter,683 S.W.2d 369, 374 (Tex. 1984).

Negligence based on failure to stop attack - the Bushnell case

In a case entitled Bushnell v. Mott (2008), the Texas Supreme Court held that a dog owner owes a duty to attempt to stop his dog from attacking a person after the attack has begun. This is a civil duty, meaning that the victim can sue if the dog owner fails to attempt to stop the attack. The court based its holding on Restatement 2nd of Torts, sec. 518, comment j (1977). The Restatement of Torts is a treatise that sets forth civil duties throughout America. For that reason, the opinion should be persuasive in civil courts throughout the USA. (Bushnell v. Mott (Tex. 03/28/2008) 2008.TX.0002515, http://www.versuslaw.com.)

Attorney Kenneth Phillips has noted that not a single American state makes it a crime to fail to prevent one's dog from mauling or even killing a person. (See Preventing Dog Bites on www.dogbitelaw.com.) While this is a frequent scenario, it was not brought to the attention of the public until the Diane Whipple case (the woman who was killed by dogs in San Francisco in 2001). The prosecutor dwelled upon Defendant Marjorie Knoller's presence during the attack and her failure to stop it, but did not specifically argue that the failure itself constituted a crime. The jury returned a second degree murder verdict against Knoller in addition to a (contradictory) verdict of manslaughter (i.e., criminally negligent homicide). Nevertheless, because the Whipple prosecution failed to press this particular issue, the case of People v. Knoller provides little indiction as to how juries might react to the criminal charge of failing to stop a dog attack.

Even though the Bushnell case focused on the tort, it established more generally that Americans recognize a dog owner's obligation to stop an attack in progress. Given the severe bodily injuries that a dog can inflict, especially upon a child or senior citizen, this responsibility needs to be enforced not only by civil tort remedies, but also by criminal sanctions.