Determining ownership for the purpose of affixing legal liability

In a civil dog bite case, the ownership of a dog that bit a person can result in strict liability, negligence per se liability for the violation of a statute, or common law liability based on scienter. In a criminal dog bite case, ownership can be the basis for prosecution. Despite these important ramifications, however, it is rare to find a specific definition of "dog owner" in any jurisdiction.

A distinction needs to be made between the legal concept of ownership and the act of registering or licensing. Our cars, homes, guns, dogs and children usually are publically registered and therefore bear our name, but our cats, food, plants and other things do not even hint at their owner's identity. Most of our possessions, in fact, display not our names but rather the corporate logos of Nike, Kenmore, Sears, the Gap, Apple, et al. Nevertheless, something that is unregistered is not "unowned." One does not have to register something in order to be its owner. For example, one can own an unregistered car, gun or dog. In dog bite cases, frequently the attacking dog is not registered, and yet the victim is entitled to proceed against the dog's owner.

In our world of "things," ownership is a paramount concept, and the law has become adept at identifying owners. Generally, the "owner" of something is the person recognized by the law as having the ultimate control over it and the right to use it for as long as the law permits, provided that no agreement or covenant limits his rights. Someone who leases or rents it from its true owner, previously sold it, has temporary possession (i.e., a bailment) of it for a specific purpose, or has misappropriated, coverted or stolen it, is not considered to be its owner.

In cases involving dogs, ownership is determined pursuant to state and local law. These differ from one jurisdiction to the next. In some, there are statutes and ordinances which provide somewhat specific criteria for determining who owns a particular animal. Typically, they provide that "owner” shall include the legal owner, equitable owner, and any person, association, partnership, or corporation harboring or having custody or control of an animal.

This definition is helpful to the extent that it equates dog ownership with "harboring" or having "custody or control" of the animal. These actions are somewhat specific and therefore can proved by testimony and tangible evidence such as receipts for dog food, notations on veterinary records, a signature on the authorization for euthanasia, and of course the dog license itself. However, the definition is circular, in that it says the the owner is the "legal owner" or the "equitable owner."

To determine the ownership of a dog, it is often necessary to resort to the particular state's method of determining the ownership of personal property in general. For example, the California Evidence Code has the following general provisions:

632. A thing delivered by one to another is presumed to have belonged to the latter.

637. The things which a person possesses are presumed to be owned by him.

638. A person who exercises acts of ownership over property is presumed to be the owner of it.

The courts have had to step in to fill the gaps created by these very general, Californian statutes. The caselaw has established, for example, that "[o]ne of the chief incidents of ownership in property is the right to transfer it." (Bias v. Ohio Farmers Indemnity Co. (1938) 28 Cal.App.2d 14, 16.) "A common characteristic of a property right, is that it may be disposed of, transferred to another." (Douglas Aircraft Co. v. Byram (1943) 57 Cal.App.2d 311, 317.) One or more persons may be an "owner," and thus liable for the injuries of a third party, even though no such "owner" possesses all of the normal incidents of ownership.'" (Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1571-1572, citing Stoddart v. Peirce (1959) 53 Cal.2d 105, 115.) Ownership is a question of fact to be determined by a jury under appropriate instructions of law. (Kaley v. Yachts (1986) 187 Cal. App. 3d 1187.) Also see Coakley v. Ajuria, 209 Cal. 745, 290 P. 33.

The following analysis was used in Ellsworth v. Elite Dry Cleaners, etc., Inc. (1954) 127 Cal.App.2d 479 to uphold the trial judge's finding that the defendant was the owner of a dog named "Eric":

The evidence shows that defendant DuNah purchased Eric; that the dog's license listed him as owner, giving his residence rather than his business address; and that the ownership of the dog was never transferred to Elite. The trial judge may well have entertained doubt that the $100 paid for the dog was an item chargeable to or intended to be paid out of defendant DuNah's annual $1,200 check for entertainment and other small expenses in view of the amount and character of the expenditure and the fact that his brothers each received a check in like amount but did not join in the purchase of the dog. The personal care and attention which defendant DuNah constantly gave the dog is not without significance in support of the finding that he owned and kept Eric. Applying the above principles, the evidence is clearly ample to support the finding that he was the owner of the dog and this finding is sufficient to sustain the judgment. (Ellsworth v. Elite Dry Cleaners, etc., Inc., ibid., at p. 483.)

Other states also have court decisions that help to determine who the law will regard as the owner of an animal. These decisions demonstrate the great flexibity which the law employs in resolving this issue. For example, in Maine the custody of a dog has long been regarded as sufficient in itself to prove ownership, at least in the absence of contrary evidence. (Grant v Ricker (1883) 74 Me 487.) In Indiana, it was held that a person can be regarded as an owner (and thereby held liable for a dog attack) even though he did not have custody of the dog and therefore did not fit the state's general definition of "owner." (Cook v. Whitsell-Sherman, 771 N.E.2d 1211 (Ind. Ct. App. 2002).)

Kentucky Revised Statutes section 258.095(5) defines an "owner" of a dog as "every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned by him." Based on this, the Court of Appeals of Kentucky has stated:

The statute [KRS sec. 258.095(5)] was designed to expand liability to those parties who keep dogs, such as kennel owners, veterinarians, and other persons who keep dogs owned by others in their care, as well as any person who keeps a dog owned by another on their property. 'Owner' in this case does not simply mean a person with a property interest in the dog, for reasons of public policy. Jordan v. Lusby, 81 S.W.3d 523 (Kent. Ct. App., 2002).)

Similarly, Minnesota Statutes section 347.22 (1988) (the strict liability dog bite statute) provides, "The term 'owner' includes any person harboring or keeping a dog but the owner shall be primarily liable."

The Minnesota Supreme Court therefore has defined "harboring" as giving lodging, shelter, or refuge to a dog for longer than a limited time or for more than a limited purpose, even without the owner's permission. (Verrett v. Silver (1976) 309 Minn. 275.)

A statute that defines "owner" as "harborer" may prevent certain dog bite victims from recovering compensation upon the ground that their temporary custody of the dog rendered them its "owner" under that statute, and therefore unable to make a claim. For example, Tschida v. Berdusco, 462 N.W.2d 410 (Minn. Ct. App. 1990) held that the statute's definition of "owner" as including "any person harboring or keeping a dog" protected a dog owner from a claim by a veterinary assistant, on the ground that the statute excluded the "legal owner" from liability to a "second party owner" (terms used by the Minnesota court.) The same reasoning was adopted in Kentucky. Jordan v. Lusby, 81 S.W.3d 523 (Kent. Ct. App., 2002). However, both Tschida and Jordan were assumption of the risk cases, where canine professionals were making dog bite claims because of injuries received while working on the defendants' dogs. It can be contended that such cases should be limited to their facts, which do not apply to the more common dog bite cases.

In Pippin v. Fink, 794 A.2d 893 (2002), a New Jersey appellate court held that the live-in companion of an individual who bought and registered a dog may be held liable for the dog's actions under the state's dog bite statute, N.J. Stat. Ann. 4:19-16, because both individuals considered the dog to be theirs and presented themselves as the co-owners of the dog. In Illinois, it was held that when an individual accepts responsibility for controlling a dog, he or she becomes an owner within the definition of the Illinois dog bite statute. (Wilcoxen v. Paige (1988) 174 Ill. App. 3rd 541.)

A variety of acts or incidents of ownership were exercised by a fraternity that was deemed to be the owner or "keeper" of a dog in the case of Oertel v. Chi Psi Fraternity, 239 Ga. App. 147, 521 S.E.2d 71 (1999); the dog's photograph appeared in local chapter's composite photograph among members of fraternity with title "mascot," he lived at the fraternity house, the fraternity paid for his "shots and stuff," and the fraternity sent a representative to pay his fines on several, perhaps five, other occasions that the dog was found to be running at large.

The ownership issue has been used to defeat an unusual claim by a "keeper" of a dog against its "owner" in a strict liability state. Several courts have addressed this interesting issue and concluded that the strict liability statute does not make the original owner strictly liable to the "secondary" owner. (See, i.e., Jordan v. Lusby (Kent. Ct. App., 2002) 81 S.W.3d 523, Wilcoxen v. Paige (1988) 174 Ill. App. 3rd 541, and Tschida v. Berdusco (Minn. Ct. of App., 1990) 462 N.W.2d 410.)

State law concepts of ownership and liability of dog bites cannot be used to impose liability upon the federal government, at least when the attack happens on a military base. Chancellor ex rel. Chancellor v. United States (6th Cir. 1993) 1 F.3d 438 was a federal case involving a dog bite injury that occurred on the grounds of Fort Knox. In that case, the plaintiff alleged that the Kentucky statute operated to make the United States an "owner" of the dog. At the time the plaintiff was bitten, the dog was in an apartment inhabited by the sergeant who was indeed the dog's owner, in other words the person who held the actual property interest in the dog. The plaintiff in that case argued the statute operated to make the United States an "owner" of the dog because the sergeant had to obtain the permission of the base commander to keep the dog. The Sixth Circuit held that the statute could not be used to make the United States liable for the dog bite, and in any event held that no claim could be made against the United States under the Federal Tort Claims Act because of a recent United States Supreme Court decision insulating the government from liability in strict liability cases. Chancellor, 1 F.3d at 440.

At trial, it is essential to have admissible evidence of ownership in states where liability for a dog bite is tied to ownership of the dog. Many of the dog bite statutes are indeed "bite" statutes, in that they cover bites and no other injurious behavior of a dog (such as scratching or knocking down). If the only ground of liability is that the defendant was the owner, or if ownership is an essential element of the case, then the victim has to be ready to prove it. One of the best ways to satisfy this burden is to obtain an admission in proper form (such as by using the Dog Bite Litigation Forms written by Attorney Kenneth Phillips). For an example of a case that was lost because of inadequate proof of ownership, see Atkins v. Conley, 504 S.E.2d 920 (W.Va. 07/02/1998) ("The testimony regarding conversations with the veterinarian in the present case was introduced in an attempt to prove the ownership of the dog, the dispositive issue in the case. We find the admission of such evidence improper; thus, reversal and remand are necessitated, especially in light of the fact that ownership was the key issue at trial.")

As a practical matter, defendants rarely succeed in establishing that they do not own a dog which lives in their house. In the Diane Whipple case, for example, the defendants claimed that they were not the owners of the killer dogs, but merely were their temporary custodians. That defense failed, as did all others, and the jury returned convictions on every criminal count. In the legion of cases handled by Attorney Kenneth Phillips, the defense of non-ownership has been attempted only several times, but has never succeeded in terminating a claim.