Virginia is a "one bite" state as well as a "contributory negligence" state.
- Virginia must change its laws
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
One Bite State
Virginia adheres to the ancient and inhumane "one bite" rule. In this state, as in old England and a minority of 19 other American states, every dog gets "one free bite" -- one free mauling or killing of a human being. For details, see The One Bite Rule. However, if the owner or another person caused the accident by being negligent or breaking a law, such as a leash law, then that person will be held legally liable. See below.
Making matters worse for all kinds of accident victims, Virginia also follows another ancient and inhumane doctrine, called the "contributory negligence" rule. It says that a person who is even one percent responsible for an accident has no legal right whatsoever to recover compensation for medical bills or anything else. There are only 4 states in the USA that follow this terrible, 18th century rule.
Virginia permits suits based upon the negligence of a dog owner or keeper. The Supreme Court has held that the owner of a domestic animal must exercise ordinary care to keep the animal off public highways. Wilkins v. Sibley, 205 Va. 171, 173, 135 S.E.2d 765, 766 (1964); Rice v. Turner, 191 Va. 601, 605-606, 62 S.E.2d 24, 26 (1950); see also Page v. Arnold, 227 Va. 74, 80, 314 S.E.2d 57, 61 (1984) (owner of domestic animal "must exercise reasonable care"). However, in the Page case, the owner of a horse that jumped a fence and injured a person was held to be free of negligence as a matter of law, because there was no proof that the pony in question had either the propensity or ability to jump a particular fence. Id. at 80, 314 S.E.2d at 61. The plaintiff in that case argued that the pony got out of the field because the fence was inadequate to restrain the animal. Id. at 79, 314 S.E.2d at 60. However, the court concluded that "there was no reason for the defendants to have anticipated that confining this pony in this fenced enclosure was liable to result in injury to others." Id. at 80, 314 S.E.2d at 61; see also Wilkins, 205 Va. at 175, 135 S.E.2d at 767; Rice, 191 Va. at 609, 62 S.E.2d at 27.
Negligence per se
Virginia also adheres to the doctrine of negligence per se in cases where a dog inflicts injury upon a person, and the dog owner is in violation of a leash law or other ordinance designed to protect the public from personal injuries inflicted by dogs. Under Virginia law violation of a statute or ordinance constitutes negligence per se. See Gough v. Shaner, Adm'r, 197 Va. 572, 576 (1955); Standard Oil Co. v. Roberts, 130 Va. 532 (1921). The violation of an ordinance subjecting an owner to a fine if his dog "shall go at large upon any public street... of the city, unless such dog is accompanied by an attendant or held in leash by a responsible person" was held to establish the basis for a negligence per se claim in Butler v. Frieden, 208 Va. 352 (Va. 1967). However, where a city ordinance required that a dog "be kept secured by a leash or lead, and under the control of the owner . . . or within the real property limits of its owners," the defendant dog owners had an electronic containment system which was in working order, and their dog escaped through that electronic fence, it was held that this did not constitute negligence per se. Stout v. Bartholomew, 261 Va. 547, 544 S.E.2d 653 (Va. 2001).
Emotional distress damages
It is proper for a physically injured plaintiff to recover damages for emotional distress. Mental anguish may be inferred from bodily injury and that it is not necessary to prove it with specificity. Norfolk & W. Ry. Co. v. Marpole, 97 Va. 594, 599-600 (1899). Mental anguish, when fairly inferred from injuries sustained, is an element of damages. Bruce v. Madden, 208 Va. 636, 639-40 (1968). However, no compensation can be awarded if the distress arises from the injury to or death of a dog. Kondaurov v. Kerdasha, 271 Va. 646 (Va. 2006).
When it comes to the civil dog bite laws, there is a certain, obvious illogic in Virginia. This state is adhering to ancient English courts that ruled that "every dog gets one free bite." This "one bite rule" was announced centuries ago, in pastoral Britain, when dogs, hogs, mules and sheep wandered aimlessly through towns, as a normal part of life. In those long-gone days, the judges of Charles Dickens' time announced that the owner of a domestic animal would not be held liable unless and until it bit someone first. There was no need for people to be vigilent about their animals because the law did not require people to take any level of responsibility until a tragedy first occured.
Those days, however, are long gone. In modern America, our ideas about personal responsibility are far different. We believe that every one of us must be responsible for the harm that we might cause, and that might be caused by our things, our employees and our children, under our "watch."
Virginia dog bite laws tell the people that it is okay for their dog to bite someone, once. That they are not responsible for it. That there is no consequence when it happens. That they can look the other way. Shrug it off. Forget about it.
That is because Virginia is following an ancient English rule of law that is out of touch with American ideals and has been rejected by 30 American states. In 30 states and the District of Columbia, there is a law that either wholly or partially supplants the "one bite rule," imposing strict liability on dog owners for dog bites, including the first bite. There is no "free bite" in those 30 states and the DC. (See Legal Rights of a Dog Bite Victim, which contains links to the dog bite statutes throughout the USA.)
Shouldn't every bite have consequences? Every victim is required to suffer, every medical bill must be paid, every ambulance company sends out its invoice, every pharmacy has a cash register. If dog owners know that there will be consequences for every bite, then they will be less inclined to permit their dogs to roam, and there will be fewer injuries.
The one bite rule needs to be repealed in Virginia. It needs to be replaced with a law that makes every dog owner, keeper or harborer legally liable for any and all injuries caused by his or her dog, other than injuries that result from provocation or are inflicted upon a trespasser.