A recent decision of the Nebraska Supreme Court created a loophole in the state's dog bite statute, giving reason for the legislature to adopt the Model Dog Bite Statute.
A prior decision of the Nebraska Supreme Court construed a previous version of the Nebraska dog bite statute. That Court decision, based on the prior statute, said that the statute did not apply to injuries that resulted from a dog's playful or mischievous actions.
Now, that is a strange interpretation of any dog bite statute. Laws about animals have to be very clear. Either a dog is on a leash, or it isn't. Whether the dog intended to act playfully or like one of the neighborhood gangsters is never an element of such a law. A dog's intent is impossible to prove. You can't cross-examine a dog, and when a dog does something unusual like attack a person, it often happens because of a combination of risk factors (see Dog Attack Danger Scale and Why Dogs Bite People).
The Nebraska State Legislature amended the dog bite statute sometime after that court decision was rendered. The Legislature inserted the word "injury" into the dog bite statute. An "injury" is not an intentional injury, a vicious injury, an accidental injury — it is simply something that produces suffering. The Legislature made this amendment because the lawmakers obviously did not agree with the Court's prior decision, which limited the statute to vicious actions by a dog.
Despite the clear meaning of the word "injury," however, this Supreme Court pretended that it was so ambiguous that it required clarification through the legislative materials created at the time that the law was being considered. These materials are referred to as expressing "legislative intent."A court looks at legislative intent when the legislature's statute could mean one thing or another thing. It is a legal rule, however, that the court will never consider the legislature's intent if a statute is clear. That would be unfair to the public, which has access to the statutes, not the lawmakers and their materials.
When the dog bite statute was amended, the Nebraska State Legislature's written materials did not specifically refer to or repudiate the court's prior decision. For that reason, in the case of Underhill v. Hobelman the court took the position that the Legislature somehow agreed with the prior decision. Therefore the court said that the prior decision would continue to be the law, despite the amendment which added the word "injury."
As I indicated above, the prior decision said that the dogbite statute did not apply to actions that were playful and mischievous. Dog bite victims in Nebraska therefore can recover for the first bite only if the insurance defense lawyer cannot show that the actions of the dog were playful or mischievous.
Remember, the Nebraska Supreme Court was interpreting only the dogbite statute of that State. The laws of other states are not affected by this.
If the State of Nebraska enacted the Model Dog Bite Statute, this would not have happened. Therefore I suggest that the people of the state contact their lawmakers and tell them that the statute needs to be amended again, using the wording of the Model Dog Bite Statute. I will testify before the Legislature if it will help to get a proper law passed — I have done this before, and it has helped in other states.
