Colorado Dog Bite Law

Colorado's dog bite statute imposes strict liability upon a dog owner when the victim suffers a serious bodily injury. For a lesser injury or to collect full damages for a serious bodily injury, a dog owner will be held liable under the one bite rule, for negligence, or for violating an animal control law. 

• Overview
• Proving a dangerous propensity
• The dog bite statute
• Negligence and negligence per se
• Landlord liability
• Bystander claims for emotional distress
• Settlement offers and awards of costs

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Overview

As in other states, a dog bite victim in Colorado can recover under all of the usual grounds pertaining to dog bite liability, most commonly including "scienter" or the one bite rule, negligence, or violation of an animal control law. See Legal Rights of Dog Bite Victims in the USA for an in-depth discussion of these legal grounds. 

Additionally, Colorado has a dog bite statute that provides for strict liability but applies only to serious bodily injuries and gives a limited remedy (only the medical costs) if it is the only ground that the victim can prove. See Revised Statutes, section 13-21-124, below.

The dog bite statute relies upon restrictive definitions of "bodily injury" and "serious bodily injury." See below. A person who suffers only emotional distress, for example, cannot recover compensation if the statute is his only ground.

Proving a dangerous propensity

It is necessary to prove the existence of a dangerous propensity under some circumstances, discussed above. A number of cases have specified what is a dangerous propensity, and what is not. For example, in Barger et al. v. Jimerson et al. (1954) 130 Colo. 459, 276 P.2d 744, the Colorado Supreme Court held that a dog owner who is free of negligence shall nevertheless be liable for injuries and losses resulting from a dog bite, if the owner knew or should have known that the dog was dangerous prior to attack. The original complaint in Barger stated that the dog owner (the defendant) "allowed said dog to run at large and loose." At the beginning of the trial, the victim (the plaintiff) asked that this allegation be stricken from the complaint, but at the end of the trial, asked that the allegation be added again. The Colorado Supreme Court held that it was not necessary to allege or prove that the owner allowed the dog to run at large. The Court stated that there was: 

"...little reason to discuss the propriety of this procedure since it is not ultimately important for a determination of the case. It is quite evident that defendant did not at any time carelessly or intentionally allow the dog to run at large. Their liability was in keeping such a dog and they did so at their peril." (130 Colo. at p. 462.)

The Court also held that the victim proved that the owner knew the dog was dangerous because, among other things, the owner kept it confined: 

"There is no evidence in this case that the dog in question had ever bitten anyone before, but its ferocious and violent nature as daily exhibited to many people, especially the neighbors, was such as to put prudent people on guard to prevent a possibility of attack on human beings.... Moreover, the fact that defendants kept the dog confined is persuasive in concluding that they considered it unsafe for the dog to be at large." (130 Colo. at p. 463.)

In E.P. Swerdfeger v. John L. Krueger, Minor, etc. (1960) 145 Colo. 180, 358 P.2d 479, the Colorado Supreme Court held that a victim who knew that the dog might bite, and had to trespass to encounter the dog, cannot recover for his injuries and losses when he trespasses and is bitten. The Swerdfeger decision adopted the language of the Restatement of the Law -- Torts: 

"... the possessor [of a dog] is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but nonetheless chooses to encounter it out of recklessness or bravado." (145 Colo. at pp. 184-5.)

In Reynolds v. Reichwein (1973) 510 P.2d 895, 1973 Colo. App. Lexis 857, the Court of Appeals of Colorado held that the appellate courts will not overturn the trier of fact's determination that that owner knew his dog was vicious, as long as the determination finds some support in the record. In Reynolds, the dog previously bit a child that provoked it. Despite the provocation, the trial court ruled that the dog was vicious and the owner knew or had notice of the dog's vicious tendencies. 

The dog bite statute

As indicated in Overview, above, the dog bite statute relies on restrictive definitions of key terms, and provides a limited remedy if the victim cannot prove the requirements of other grounds, such as scienter, negligence or violation of an animal control law (negligence per se). Before reading the text of the statute, below, one must review these restrictive definitions to determine whether the statute is applicable.

The statute applies only to a "serious bodily injury." The definition of "serious bodily injury" is contained in section 18-1-901(3)(p), which defines it as "bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree." A "bodily injury" means "any physical injury that results in severe bruising, muscle tears, or skin lacerations requiring professional medical treatment or any physical injury that requires corrective or cosmetic surgery." (Sec. 13-21-124, subd. (1)(a).) Emotional distress, for example, would not be covered under the statute if it does not result from actual physical injury.

As stated above, if a victim relies solely on the dog bite statute, his recovery will be limited to economic damages; the statute does not provide for non-economic damages. The term "economic damages" includes past medical bills, future medical bills, past psychological counseling, future psychological counseling, past loss of income, and loss of earning power as a result of disability or disfigurement. Section 13-21-102.5 defines "noneconomic loss" as “nonpecuniary harm ... including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life.”

One cannot recover under the statute if he trespassed, provoked the dog, ignored a warning sign, were a judge at a dog show, or were performing a service for the dog, or if the dog was doing military or police work, or was working as a hunting, herding, farming, ranching, or predator control dog.

In Colorado, non-economic damages are limited in most cases. Section 13-21-102.5 limits to "$250,000" the amount of "noneconomic loss or injury" that an injured person can recover. The monetary amount of the "cap" changes from year to year. However, if you have physical impairment or disfigurement from the bite, there is no "cap" on your case.

Here is the text of Colorado's dog bite statute, Col. Rev. Stats. sec. 13-21-124 (Civil actions against dog owners):

13-21-124. Civil actions against dog owners.

(1) As used in this section, unless the context otherwise requires:

(a) "Bodily injury" means any physical injury that results in severe bruising, muscle tears, or skin lacerations requiring professional medical treatment or any physical injury that requires corrective or cosmetic surgery.

(b) "Dog" means any domesticated animal related to the fox, wolf, coyote, or jackal.

(c) "Dog owner" means a person, firm, corporation, or organization owning, possessing, harboring, keeping, having financial or property interest in, or having control or custody of, a dog.

(d) "Serious bodily injury" has the same meaning as set forth in section 18-1-901 (3) (p), C.R.S.

(2) A person or a personal representative of a person who suffers serious bodily injury or death from being bitten by a dog while lawfully on public or private property shall be entitled to bring a civil action to recover economic damages against the dog owner regardless of the viciousness or dangerous propensities of the dog or the dog owner's knowledge or lack of knowledge of the dog's viciousness or dangerous propensities.

(3) In any case described in subsection (2) of this section in which it is alleged and proved that the dog owner had knowledge or notice of the dog's viciousness or dangerous propensities, the court, upon a motion made by the victim or the personal representative of the victim, may enter an order that the dog be euthanized by a licensed veterinarian or licensed shelter at the expense of the dog owner.

(4) For purposes of this section, a person shall be deemed to be lawfully on public or private property if he or she is in the performance of a duty imposed upon him or her by local, state, or federal laws or regulations or if he or she is on property upon express or implied invitation of the owner of the property or is on his or her own property.

(5) A dog owner shall not be liable to a person who suffers bodily injury, serious bodily injury, or death from being bitten by the dog:

(a) While the person is unlawfully on public or private property;

(b) While the person is on property of the dog owner and the property is clearly and conspicuously marked with one or more posted signs stating "no trespassing" or "beware of dog";

(c) While the dog is being used by a peace officer or military personnel in the performance of peace officer or military personnel duties;

(d) As a result of the person knowingly provoking the dog;

(e) If the person is a veterinary health care worker, dog groomer, humane agency staff person, professional dog handler, trainer, or dog show judge acting in the performance of his or her respective duties; or

(f) While the dog is working as a hunting dog, herding dog, farm or ranch dog, or predator control dog on the property of or under the control of the dog's owner.

(6) Nothing in this section shall be construed to:

(a) Affect any other cause of action predicated on other negligence, intentional tort, outrageous conduct, or other theories;

(b) Affect the provisions of any other criminal or civil statute governing the regulation of dogs; or

(c) Abrogate any provision of the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S.
History

Source: L. 2004: Entire section added, p. 507, § 1, effective April 21.

Negligence and negligence per se 

Colorado case law holds that a person who owns, keeps or harbors a dog which causes injury can be held liable under theories of negligence and negligence per se. For more about these legal grounds generally, see Legal Rights of a Dog Bite Victim. Even if the dog bite statute applies, the victim cannot recover full damages unless he can prove the requirements of one of the traditional grounds for dog bite liability, of which negligence and negligence per se are two. 

In Snow v. Birt, 968 P.2d 177 (Colo.App. 10/29/1998), a young girl named Cynthia was visiting her father, who owned a dog. Her father and the dog lived with Cynthia's grandparents. A week prior to this visit, the dog bit a different child and then, at this visit, the dog bit Cynthia. The grandparents clearly knew about the prior bite because they built a dog run to confine the dog, upon orders of the health department after the first bite.

On Cynthia's behalf, a claim for compensatory and punitive damages was made against the grandparents. It was alleged that they were liable on the grounds of general negligence and negligence per se based on the violation of a municipal ordinance. The ordinance provided that "[i]t shall be the duty of every owner or keeper of any animal in their possession or control, to exercise reasonable care and to take all necessary steps and precautions to protect other people . . . from injuries or damage which might result from their animal's behavior." Another ordinance defined "owner or keeper" to include "any person . . . possessing, harboring, keeping, having an interest in, or having control or custody, either permanently or temporarily, of an animal."

The grandparents moved for summary judgment, asserting that they owed no legal duty to Cynthia and that any such duty was owed by Cynthia's father, the dog's owner and keeper. The trial court granted the motion, but the court of appeals reversed.

The court held first that the grandparents were harborers and/or keepers of the dog, and that the dog was in their control or custody. The court also held that the municipal ordinances imposed a duty of care upon defendants to exercise reasonable care and to take all necessary precautions to protect Cynthia from being injured by the dog. Additionally, the court held that the grandparents owed the little girl a common law duty of care, based on the fact that the they were harborers and/or keepers of the dog, and that the dog was in their control or custody.

This case therefore stands for the proposition that harborers and keepers (as opposed to owners) of a dog may be held liable for injuries it inflicts, founded upon general negligence and negligence per se based on the violation of a municipal ordinance.

It has been specifically held that negligence per se is a proper ground for liability, based on the violation of a statute or ordinance that is intended to prevent harm. Lui v. Barnhart, 987 P.2d 942 (Colo.App. 08/19/1999). As the plaintiff in Lui was driving home at night, his vehicle collided with defendant's horse. The horse had escaped from its corral and had wandered into the street. A city ordinance required that owners of animals "shall not fail" to keep their animals physically confined or restrained. At trial, based on the ordinance and the horse's presence in the road, plaintiff requested the trial court to instruct the jury concerning negligence per se, among other things. The trial judge gave the requested instruction, but the jury found no negligence. On appeal, the giving of the instruction was upheld. The court of appeal stated:

Some situations that may not be considered inherently dangerous to others but could pose a risk of danger under certain circumstances may be regulated by statute or ordinance, which, in turn, may be the basis of a negligence per se claim if the statute is violated. In such situations, the statute itself establishes the standard of care and its violation is equivalent to a breach of duty and conclusively establishes that aspect of a plaintiff's negligence claim.

The wording of the statute or ordinance is critical to proving whether it was violated. In Lui, supra, the horse was wandering loose, the ordinance required that owners of animals "shall not fail" to keep their animals physically confined or restrained, and therefore a violation occurred. The result will be the opposite, however, if the ordinance makes it "unlawful for any owner . . . of any dog to allow such dog to run at large." This was how the ordinance was worded in Downing v. Lillibridge, 566 P.2d 714, 39 Colo. App. 231 (Colo.App. 04/21/1977). The Downing court held that there was no violation because the word "allow" required proof of either negligence or intentional conduct on the part of the defendant:

In construing statutory language similar to that contained in the ordinance above, the overwhelming majority of courts has held that civil liability for injuries caused by an animal running at large cannot be imposed against the owner of the animal absent a showing of negligence or intentional conduct on the part of the owner in permitting the animal to run at large. See, e.g., Santanello v. Cooper, 106 Ariz. 262, 475 P.2d 246 (1970); Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973); and see generally, 4 Am. Jur. 2d, Animals § 116; Annot, 34 A.L.R.2d 1285. We therefore conclude that the use in the ordinance of the word "allow" evidences a legislative intent to require proof of an owner's negligence as a predicate to recovery in a civil action.

The availability of negligence per se based on a statutory violation is of great importance in Colorado because this cause of action follows from the type of serious injury that violates section 18‑9‑204 (Unlawful Ownership of Dangerous Dog). Subsection (3)(a) makes it a criminal offense to have a dangerous dog. ("A person commits ownership of a dangerous dog if such person owns, possesses, harbors, keeps, has a financial or property interest in, or has custody or control over a dangerous dog.") Subsection (2)(b)(I) defines "dangerous dog" as "any dog that ... [h]as inflicted bodily or serious bodily injury upon or has caused the death of a person." There is no requirement of prior knowledge of the dog's dangerousness.

There are no appellate cases that have considered whether a violation of section 18‑9‑204 constitutes negligence per se and thereby entitles the victim to collect full damages from the perpetrator of the violation. Such an interpretation could be of great importance where the violation was committed but the victim cannot prove the requirements of other causes of action, or of a cause of action that entitles the victim to full compensation as opposed to merely the recovery of economic damages. 

It is possible that a court may rule that violating section 18-9-204 constitutes negligence per se. The court may adopt the interpretation of a similar statute which exists in Pennsylvania. That state's regulation of dangerous dogs rests upon criminal law that, throughout the USA, bears the closest resemblance to Colorado's section 18‑9‑204. Section 502-A(a)(1) of the Pennsylvania "Dangerous Dog Statute" makes it a crime to keep a dangerous dog, which means a dog that "has done one or more of the following: (i) [i]nflicted severe injury on a human being...." A "severe injury" is "any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery." (The Dog Law, sec. 102.) In Commonwealth v. Hake 738 A.2nd 46 (Pa. Commw. Ct. 1999) it was held that a single incident of infliction of severe injury imposes criminal liability under the above statute. For more about Pennsylvania's dog bite law, see Pennsylvania.

On the basis of that violation, dog bite victims have prevailed in making negligence per se claims against dog owners in the State of Pennsylvania, which is a "one bite state." Colorado courts could adopt the same reasoning that Pennsylvanian courts did. Where no in-state precedents exist, Colorado courts examine out-of-state cases that construe similarly worded statutes. People v. Julien, 47 P.3d 1194 (Colo. 2002), Air Communications & Satellite Inc. v. EchoStar Corp., 38 P.3d 1246, 1251 (Colo. 2001). The Hake case was well reasoned and chould be applied in Colorado to produce the same result.

Landlord liability for dog bites

The Colorado premises liability statute, § 13-21-115, C.R.S. 2004, is a dog bite victim's only means of recovery in an action against a landlord. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005); Vigil v. Franklin, 103 P.3d 322 (Colo. 2004). In Wilson it was held that a landlord would be liable for the dog's attack only if he actually knew, prior to entering into the lease, of the danger the dog presented.

Bystander claims for emotional distress

Colorado permits recovery for negligently inflicted emotional distress where that distress has resulted in serious physical manifestations. Towns v. Anderson (Col., 1978) 579 P.2d 1163.

Settlement offers and awards of costs 

Like a number of other states (including California), Colorado encourages parties to settle lawsuits. Such encouragement is by virtue of a statute that says, essentially, that a party will be regarded as a loser even if he is the winner, if he failed to accept a more advantageous offer of settlement. As the loser, that party will be required to pay everyone's litigation costs (but not attorney fees).

13-17-202 - Award of actual costs when offer of settlement was made.

      (1) (a) Notwithstanding any other statute to the contrary, in any civil action of any nature commenced or appealed in any court of record in this state: 

      (I) If the plaintiff serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the defendant and the plaintiff recovers a final judgment in excess of the amount offered, then the plaintiff shall be awarded actual costs accruing after the offer of settlement to be paid by the defendant; 

      (II) If the defendant serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the plaintiff and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff; 

      (III) If an offer of settlement is not accepted within ten days after service of the offer, the offer shall be deemed rejected, and the party who made the offer is not precluded from making a subsequent offer. Evidence thereof is not admissible except in a proceeding to determine costs. 

      (IV) If an offer of settlement is accepted within ten days after service of the offer, either party may file the offer, written notice of acceptance, and proof of service with the court, and the clerk shall enter judgment upon the accepted offer of settlement; 

      (V) An offer of settlement under this section shall remain open for at least ten days from the date of service unless withdrawn by service of withdrawal of the offer of settlement; 

      (VI) An offer of settlement served at any time ten days or less before the commencement of the trial shall not be subject to this section, and evidence thereof is not admissible for any purpose. 

      (b) For purposes of this section, "actual costs" shall not include attorney fees. 

      (2) When comparing the amount of any offer of settlement to the amount of a final judgment actually awarded, any amount of the final judgment representing interest subsequent to the date of the offer in settlement shall not be considered. 

      (3) When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of settlement, which shall have the same effect as an offer made before trial (except with respect to costs already incurred) if it is served pursuant to subsection (1) of this section.