Trespassers and even burglars are not necessarily denied recourse for a dog bite. Under rare circumstances, even a burglar can recover compensation. The analysis is complicated.
All dog bite statutes exclude burglars and other trespassers. Therefore the only way a burglar can recover compensation would be under the common law (i.e., stemming from English law and modified by court cases in the state having jurisdiction). The common law says that when a person has an animal known to cause injury because of a dangerous propensity, there is strict liability. This is the so-called "one-bite rule" but it applies to all domestic animals and all types of injuries.
Under the old common law, burglars could be compensated because the policy of the law was dead-set against having such animals. However, modern cases confirming the common law position are rare. One reason is that most dog bite cases are brought under dog bite statutes; another is that tort reform and traditional negligence rules place blame on wrongdoing victims and cut their recovery even when they have a viable cause of action. In other words, if a burglar gets bitten by a dog, a jury might say that the burglar wins if the dog was known to be a killer of people, but the jury might also say that the incident was 95% the fault of the burglar for being there in the first place. In that event, his $50,000 verdict would produce an award of $2,500 in a strict comparative negligence state, but NOTHING in a modified comparative negligence state.
Another complication in this analysis has to do with the doctrine of trespass. The dog bite statutes and other state and federal law give a range of people the right to go onto the property of others. Examples are police, firemen, postal workers and utility workers. Additionally, there are many people whom a landowner is "deemed" to have invited onto the property. The law uses the term "implied invitation" for visitors to a garage sale, real estate agents who have a listing, delivery people, and many others. There also are those who are expressly invited, like schoolmates and other guests. While a burglar is, by definition, not an invitee, all of these other people are. Therefore, they are not considered to be trespassers.
As a practical matter, attorneys do not represent victims in cases where the likely recovery will not be sufficient to pay a fair amount to the victim, pay or reimburse the medical treatment costs (past and future), compensate the attorney for his or her services, and reimburse the attorney or the client for the costs of the case. Therefore a burglar or trespasser with a $100,000 injury might not find a lawyer willing to represent him.
A good case is one that has three elements: liability on the part of the defendant, insurance coverage, and an injury that deserves significant compensation.
The first issue is whether the law makes anyone legally liable for the incident. If the state where the incident happened has a strict liability dog bite statute, the answer is yes. If there is no such statute, there might be a strict liability ordinance in the city or county where the incident happened, and the answer would be yes. In places where there is neither a strict liability statute nor ordinance, the answer is yes (in almost all states) if the victim can prove one of three things:
- That the dog previously bit another person or acted like it wanted to, and that the dog owner, keeper or harborer knew about it.
- That a third party like a landlord was negligent in some manner, and the negligence caused the incident to happen.
- That a third party violated an animal control law like a leash law, and the violation caused the incident to happen.
The second issue is whether the legally liable person is covered by insurance. Individuals who live in a house that they do not rent are usually covered for dog bites by the homeowners insurance on the house. People who rent are covered by renters insurance, if they have it. Dwellers of mobile homes and condominiums also are covered by insurance, if they have it. Landlords, store owners, and corporations also have insurance that covers dog bites. The significance of insurance is twofold. First, it means that there will be money available to pay the victim. Second, it means that the victim can retain an attorney on a contingency fee basis, also known as a "no recovery, no fee" basis. Attorneys who handle dog bites for the victims usually do not ask for payment until and unless money is recovered; if there is no insurance, however, the victim rarely can retain a lawyer because of the improbability of collecting enough money to adequately compensate both the victim and the attorney. Unless the injuries are insignificant, recovering money for the victim is something that requires the help of a good lawyer. (See Does an adult need a lawyer for a dog bite claim? or, if the victim was a child, Should parents get a lawyer for their injured child?)
The third issue is whether the amount of compensation at stake is great enough to support the effort required to obtain it. The amount of compensation depends on the nature and extent of injury, the extent and impact of the medical treatment, and a host of other factors such as possible scarring, disability, loss of income, emotional injuries, and future costs for scar reduction, counseling, and other things. The only people who can estimate the amount of compensation at stake are attorneys who represent victims, and insurance adjusters. For that reason, it is essential for the victim to consult with a lawyer as to this third issue. Establishing liability and the availability of insurance coverage do not make the effort "worth it" if the eventual recovery probably will not exceed the cost, effort, and emotional strain of pursuing the case.
The issues of liability, insurance coverage, and probable net recovery can be difficult to resolve; indeed, it is rare for the answers to be apparent. Dog bite law provides defenses for dog owners, like provocation, assumption of the risk, and trespass; their insurers can rely on exemptions, exceptions, and policy definitions that sometimes are very controversial. Although it is rare for a dog bite case to go to trial, every claim must be supported by "trial-ready" evidence. Additionally, the victim will have to settle the claims which will be made by his own doctors, the hospital, and his health insurance company (or the Medicaid program that pays his medical costs). Furthermore, a victim's settlement can have tax consequences especially if it is invested, victims who already receive government benefits can lose them unless the dog bite settlement money is handled a specific way, and almost all injured minors have to make a court appearance when the case is over.
To get justice, therefore, the victim needs an experienced lawyer. Fortunately, attorneys who handle such cases in the USA usually provide a free consultation. There is no downside to discussing the case with someone who has the experience, learning, and desire to help the dog bite victim recover adequate compensation without too much effort, stress, or harm to relationships.
A dog owner can be held liable for failing to stop an attack in progress, irrespective of whether he can be held liable under the one bite rule or any other legal theory.
Liability for failure to stop an attack is based on Restatement (Second) of Torts, section 518, comment (j) (1977), as set forth in Bushnell v. Mott, 254 SW 3d 451 (Tex. Supreme Ct., 2008):
Bushnell alleged that Mott was negligent not only in failing to keep her dogs restrained, but in failing to do anything to stop the attack after it had started. As a comment to the Restatement recognizes, the owner of a non-vicious dog is generally not liable for the former, but can be liable for the latter:
[A]lthough the possessor or harborer of a dog or cat is privileged to allow it to run at large and therefore is not required to exercise care to keep it under constant control, he is liable if he sees 453*453 his dog or cat about to attack a human being . . . and does not exercise reasonable care to prevent it from doing so.
See RESTATEMENT (SECOND) OF TORTS § 518 cmt. j (1977).
If we consider only Bushnell's original affidavit, Bushnell testified that while she was being bitten, she "never once heard [Mott] scold the dogs." Even if Mott did not know her dogs had dangerous propensities, Bushnell's original affidavit indicating that Mott did nothing to prevent her dogs from continuing to attack Mott raises a material fact issue concerning whether Mott failed to exercise ordinary care over her dogs once the attack began.
Failing to stop an attack in progress also can be used against the defendant at trial to increase civil and/or criminal liability. In the Diane Whipple case (People v. Knoller), defendant Marjorie Knoller was convicted of second degree murder upon proof that included (among other things) that she was present throughout the entire time that her Presa Canario dog was mauling the victim to death. See The Diane Whipple Case.
Most states and the District of Columbia impose liability on a dog owner for all dog bites even if the dog previously was a "good dog." The victim is compensated through the dog owner's homeowners or renters insurance. A minority of states observe the "one bite rule" which shields a dog owner from liability unless he knew that it tended to bite, or caused the bite negligently or intentionally, or violated a leash law or other animal control law.
- The basics
- "Statutory strict liability states"
- "One bite states" and "mixed dog bite statute states"
- Negligence per se for violating a leash law or other animal control law
- City and county law, and how to find it yourself
- Laws of foreign nations
- Liability for failure to stop an attack in progress
- Liability to trespassers and burglars
- Other grounds for liability
- The amount of money the victim should receive
- Who actually pays the damages
- How to find out whether the liable person is insured
- What to do when the dog owner says he is uninsured
- What will happen to the dog
- How to know if you have a good case
In most cases, absolutely nothing happens to the dog except that it might be quarantined for a few days (frequently at the dog owner's home). If the attack is brutal or other conditions are met, however, the local animal control authority or court may issue orders requiring that the dog be confined or destroyed. In California, a Court can declare a dog to be a "potentially dangerous dog" or a "vicious dog."
- A "potentially dangerous dog" has to be confined inside, or in a fenced yard that is escape-proof and child-proof. When off the owner's property, it has to be restrained by a substantial leash and under the control of a responsible adult.
- A "vicious dog" can be destroyed or, if the dog is to remain alive, severe conditions may be imposed for the protection of the public.
To read more about the legal aspects of vicious and dangerous dogs, see Dangerous dogs.
Dog bite victims often do not want anything to happen to the dog. If the local animal control department has not been notified, the victim can instruct his or her attorney to refrain from doing so. The attorney is required to do a client's bidding with regard to notification of the authorities (as well as anything else affecting the client's rights). A victim therefore can be assured that nothing will happen to a dog against the victim's will.
If the victim's presence is required at a "dangerous dog hearing," she should consult with an attorney. The procedures often followed by animal control departments in "dog court" hearings may unintentionally compromise the victim's rights. A victim and her family therefore should not communicate with animal control authorities until her lawyer reviews the city and county ordinances, obtains the department's commitment as to which laws and procedures they will be following, and is satisfied that the issues addressed elsewhere in Dog Bite Law will be resolved fairly. (See Dog Bite Victims Need an Attorney for "Dog Court.")
There is a protocol that should be followed when a dog owner alleges there is no insurance. It's not a matter of asking for their policy, but going further if injury warrants it. Here's why:
Several years ago, Attorney Kenneth Phillips agreed to represent a young mother whose arm was snapped off by a pit bull. The arm was reattached but she was in bad shape. The responsible parties were an older couple who, according to their attorney, had nothing. He found out, however, that they had investment properties. Phillips got them to write the victim a check for $95,000 and he also talked the doctors into waiving payment for treatment. The young mom now owns property and a mobile home, and is doing fine. But nobody was going to help her because it seemed, at first, that there was no way to win.
To attempt to get justice for the victim, there are three things that must be done:
Get answers from the dog owner
First, one must file suit and get answers under oath to the following questions:
- Who are all the parties you purchase your insurance from -- meaning any and all insurance, whether or not you believe a policy provided coverage for this?
- List all of your insurance policies whether or not you believe they provided coverage for this.
- Have you asked those parties whether you have insurance for this?
- Who did you ask and what were you told?
- Have you asked those parties whether you have an umbrella policy?
- Who did you ask and what were you told?
- Have you asked those parties whether you have an excess policy?
- Who did you ask and what were you told?
- Have you asked those parties whether your motor vehicle insurance consists of two policies, one being a motor vehicular accident liability policy and the other being an umbrella policy?
- Who did you ask and what were you told?
The dog owner also must be told to give us copies of all of of his policies so that we can read them and discuss them with the parties he purchases his insurance from. There are a few states that require people to give this type of information. If the response is unsatisfactory or incomplete, one must take the dog owner's deposition for the purpose of learning additional information.
Get answers from the insurance agents and brokers
Second, there must be follow-up with the people who sell the insurance to the dog owner. Each must be asked whether there is an applicable policy, whether there are additional policies, and what they know about coverage for dog bites.
Do a private investigation
Third, a private investigator must be retained to conduct a thorough investigation into two areas: the dog's history of viciousness, and the owner's financial condition. An uninsured dog owner might have a number of investments, might own real property in different places, etc. This would mean that he might not be able or willing to declare bankruptcy.
See whether you can find an attorney who will do these things on a contingency fee basis. If not, contact the most highly qualified dog bite attorney you can find, and discuss what it would cost for him to represent you for hourly fees.