The Tennessee House of Representatives wrote its own version of the new prohibition against dogs running at large, and wrote an entirely new dog bite statute that actually preserves the ancient English one-bite rule. These amendments are unworthy of the people of Tennessee, and should not be passed by the conference committee.
Section 44-8-408, subsection (d)(4):
In the “at large” law, there should not be an exception for “the dog was being moved from one place to another.”
The word “moved” is vague and ambiguous. Any time a dog is walking, it could be regarded as “being moved.” At least, the loophole is there.
Section 44-8-408, subsection (d)(9):
In the “at large” law, the exception contained in (d)(9) should not contain the words “disturbing, harassing, assaulting.” The reason is that the concept of “provocation” covers all of these things, has been developed by courts for hundreds of years, and there is no reason to put this gloss on it.
Furthermore, the word “disturbing” is vague and ambiguous, as it could refer to something that is simply confusing as opposed to something that truly constitutes provocation.
Section 44-8-408, subsection (g):
In the “at large” law, the exception contained in subsection (g) completely exonerates a dog owner to the point that he is not even given a fine. That makes no sense.
Instead, to mitigate against what some apparently regard as the harshness of subsections(c)(4) and (c)(5), substitute the following for subsection (g):
“A violation of subsection (b) which otherwise would come within subsection(c)(4) or (c)(5) shall be a Class A misdemeanor punishable by fine and/or imprisonment if the dog owner establishes that he exercised reasonable care in attempting to confine or control the dog.”
The house amendment is actually an entirely separate and different kind of dog bite statute. I say this for two reasons: the conditions for liability are made very difficult to satisfy, and one of the exceptions actually affirms the one-bite rule instead of replacing it.
For example, the first sentence of subsection (a)(1) contains two separate “duties.” The effect of this subsection is to create two conditions that would have to be satisfied for liability to be imposed. The victim would have to prove that the dog was not under reasonable control, and would also have to prove that the dog was at large.
Neither of these conditions should be required. These conditions would vitiate the bill. The intent of the bill is to put liability upon the dog owner NOT because he did something wrong, but because of a public policy that a dog owner is fully responsible for injuries caused by his dog.
Most states that have dog bite statutes put responsibility on the dog owner without the victim having to prove negligence or the violation of a running at large law. The one state that conditions liability upon proof of three different factors — ownership, negligence and the violation of an at large law — is Georgia, and it is clear that this triple burden works great injustice upon dog bite victims in that state.
Of the 32 states that have eliminated or modified the one-bite rule, there are a number that have modified it in an insubstantial way. For example, Colorado imposes strict liability only for medical bills and economic losses; New York is worse, limiting strict liability to merely the medical costs. So one cannot say that Tennessee would be entirely out of line by limiting the operation of the one-bite rule in specific instances. However, we CAN insist upon a full cup of justice for victims, based on the principle of dog owner responsibility mentioned in the prior paragraph of this memo.
Therefore, the first sentence needs to be deleted and the second sentence needs to be restored to the language used in the Senate version, which simply refers to a dog owner and not a person who has breached these other duties.
The exception contained in subsection (c) is drastic. The one-bite rule is preserved for accidents that happen upon the property of the owner, pursuant to subsection (c). So this statute would actually perpetuate the one-bite rule, which would be a mistake and an injustice.