Negligence

In almost every jurisdiction, a person is liable for all losses and damages that result from his or her negligence. With certain exceptions, dog owners, people who handle dogs, people who harbor dogs, landlords, stores, animal control departments, school districts and everyone else connected in any way with a dog can be held responsible if their negligence causes injuries inflicted by the dog. Restatement (Second) of Torts, section 302, provides, “A negligent act or omission may be one which involves an unreasonable risk of harm to another through … the foreseeable action of … an animal ….” Restatement (Second) of Torts, section 302, comment (a), states, “In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.”

Negligence is usually defined as an unreasonable action, or unreasonable omission to take action or give a warning. An act or omission is unreasonable when it is done with a lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. Courts consider whether an ordinarily prudent and careful person would have foreseen the possibility of harm as a result of the act or omission — not the particular injuries that resulted, but the fact that harm of some sort could occur.

The doctrine of negligence may make a person liable not only for bites but also for non-bite injuries. An example of an unreasonable action would be a dog owner letting go of his dog’s leash when another dog approaches so that the dogs can “play.” An unreasonable omission might be the failure to keep a dog away from guests, where the dog is known to play too roughly and knock people down. Negligence can consist of putting a watchdog on a bed with a crying infant. Breaking a promise to keep a dog confined away from the eventual victim may constitute negligence. (See Bergetz v. Repka (Ark. 1968) 244 Ark. 60, 63 [“Repka’s decision to let the large German shepherd out of its enclosure violated the assurances that his wife had given to Mrs. Bergetz.”].)

Courts recognize that even where a dog’s owner had no actual knowledge of prior attacks, “liability may arise depending upon the kind and character of the particular animal concerned, the circumstances in which it  is placed, and the purposes for which it is employed or kept.” Rowland v. Log Cabin, Inc., 2003 S.D. 20, 658 N.W.2d 76, 78 (S.D. 2003) (holding that  “[a]ll the surrounding facts and circumstances should have been examined to determine the foreseeability question,” and “whether a reasonable person would have realized that a  large, unknown dog roaming free in a small bar with drunken patrons involved an unreasonable risk of harm is a question for a jury.”).

Proof of negligence comes in many forms, including the testimony of witnesses, admissions by the defendant, physical evidence, and violation of laws or guidelines. As an example, it is clear that, in a daycare center, allowing a child to have unsupervised contact with a dog is negligent, because the CDC has published guidelines to that effect. See CDC, Animals in Schools and Daycare Settings; see also CDC, Compendium of Measures to Prevent Disease Associated with Animals in Pubilc Settings, 2011, MMWR, May 6, 2011, 60(RR04); 1-24.

For some victims, the rules of negligence are modified to some extent. When an adult invites a child into the adult’s home, for example, the courts of many states say that a “special relationship” exists between that adult and child, requiring the adult to take more precautions than if the guest was an adult.

When a person in possession of land fails to protect a visitor from a dangerous dog, this type of negligence is sometimes pursued under the doctrine of premises liability. The underlying act or omission is the unreasonable failure of the defendant to eliminate the danger, warn of it, or protect the visitor from it. The basis for this cause of action is Restatement (Second) of Torts § 323 (1965), which imposes liability on a defendant who negligently performs an undertaking to render services:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.

Not all states allow this cause of action, however. In one state (California) the victim must prove actual knowledge if the tenant’s dog resided on residential premises, but only constructive knowledge if the attack happened on commercial property. “Constructive knowledge” means that the landlord should have found out that the vicious dog was on the property.

Landlords, land owners, and management companies can be held responsible for failing to inspect their commercial or residential property when they have possession and control of it, such as when a tenant vacates the premises or moves into the premises. They also may be held liable for failing to conduct periodic inspections of their commercial property. Similarly, the landlord’s knowledge of a nonfunctional gate or decrepit fence, plus the presence of a dog of sufficient size to escape confinement, can result in civil liability and even criminal liability. (Sea Horse Ranch, Incorporated v. Superior Court (1994) 24 Cal.App.4th 446, People v. Berry (1991) 1 Cal.App.4th 778.)

The relationship between the scienter cause of action (i.e., a case based on the one-bite rule) and negligence has been misunderstood in a number of cases. The general rule is that the cause of action for negligence exists side-by-side with the cause of action for scienter. Both are set forth by the Restatement (Second) of Torts, and in theory, they clearly do not preclude each other. The Restatement of Torts summarizes the general principles of common law that establish the tort of negligence as it applies to dogs and other animals. See Legal Briefs: Restatement of Torts. The section 509 cause of action (see below) is usually referred to as the “one bite rule” and is based on the domestic animal’s history of injuring people or behavior establishing a propensity to injure people, while the section 518 cause of action (also below) is founded on intentionally or negligently failing to prevent the injury. Section 509 describes the elements of the scienter cause of action as follows:

(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.

(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know. (Restatement (Second) of Torts, § 509, at p. 15.)

Section 518 of the Restatement (Second) of Torts, § 518, describes the negligence and assault causes of action:

Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,

(a) he intentionally causes the animal to do the harm, or

(b) he is negligent in failing to prevent the harm. (Restatement (Second) of Torts, § 518, at p. 30.)

There is an important distinction that must be made between knowing that a dog has the dangerous propensity to bite humans, and knowing that a dog presents a foreseeable risk of harm to people. Proof of a dangerous propensity is required for the cause of action based on scienter. See The One Bite Rule. This is not required for a case based on negligence; most states hold that an action based on negligence requires proof only that something about the dog (such as its habits, its health, or how it was maintained) or something about the circumstances presented at the time of the biting incident presented an unreasonable risk of harm. For example, in Labaj v. VanHouten, 322 S.W.3d 416, 421 (Tex. App.—Amarillo 2010, pet. denied), the jury specifically found that the dog did not have a dangerous propensity, but nevertheless that its owner was negligent. The verdict was upheld because the court felt there was sufficient evidence that the dog presented an unreasonable risk of harm because it was nursing puppies, was recovering from being struck by a car, and engaged in a variety of frightening behaviors.

There are some states, however, whose courts have impaired or eliminated the negligence cause of action as it pertains to the broad range of canine-inflicted injuries, meaning bites and other injurious conduct of a dog. To recover compensation on the ground of negligence in these states, the victim must prove the elements of the one-bite rule (i.e., that the dog had the propensity to bite people without justification, and that the owner, harbored, or keeper knew it). Therefore the dog bite victim in this type of state has to satisfy more requirements than victims who are negligently injured by other means. For example, if a dog owner brought his pit bull to a daycare center, and the dog mauled a toddler, the dog owner would have no liability at all unless it could be proved that the dog had demonstrated the specific dangerous propensity to bite people. The sheer stupidity and recklessness of bringing the dog there in the first place would not be enough to make the dog owner liable in this type of state. The decisions of the courts of these states do not distinguish between the very different concepts set forth in Restatement sections 509 and 518.

• For example, the courts of New York prohibit the negligence cause of action when it comes to any domestic animal.
• The courts of Georgia construe the common law and the Georgia dog bite statute as prohibiting negligence, although in the Braeden Kelly Case a trial-level court permitted the plaintiff to proceed on a negligence theory. (See discussion in the following paragraph and on the Georgia page of Dog Bite Law.)
• Decisions in Maryland and Ohio appear to eliminate negligence as a viable cause of action in dog bite cases by defining it as behavior taken with knowledge of a dog’s dangerous propensity to bite.

A trial-level case in Georgia, however, illustrates not only the flaws of reasoning when dog owner negligence is said to be non-actionable but also the willingness of modern judges to hold irresponsible dog owners accountable when circumstances warrant it. In April 2006, Attorney Kenneth Phillips argued against a motion for summary judgment aimed at “throwing out” a Georgia dog bite lawsuit known as the Braeden Kelly Case. One of the claims in that suit was that the attack resulted from the negligence of the dog owners. The defendants, who were represented by their insurance company, based their motion for summary judgment upon Georgia court decisions that proclaim that negligence is not a proper cause of action against dog owners. The trial court sided with the victim regarding the negligence claim. This led to a settlement in August 2006. (Georgia attorneys who represent dog bite victims are invited to contact Mr. Phillips, who will send them the materials involved in that motion.)

Another form of negligence is called “negligence per se.” It refers to the consequence of breaking a law designed to prevent harm to people. For example, failing to abide by the leash law constitutes negligence per se if, because the dog is unleashed, it causes harm to a person. For details, see Negligence Per Se for Violating a Leash Law or Other Animal Control Law.

The negligent act or omission must be the proximate cause of the losses. Proximate cause is a unique legal concept. Basically, it means that the harmful result must be closely related to the negligent act or omission. For example, if a dog digs under a fence and gets out and hurts someone, that will be considered the fault of the dog’s owner, and that negligence would be considered the proximate cause of the harm inflicted. However, if the dog gets loose and the victim, seeing it running around, decides to walk around the block but gets a heart attack because of the walk, there would be at least a big legal battle over whether the loose dog was the proximate cause of the heart attack.

The victim must be a person to whom the dog owner owes a legal duty. For example, the mother of a child victim who is bitten in the mother’s presence can make a claim for negligent infliction of emotional distress in many states because she is a person to whom a duty is owed. However, the child’s best friend who was not a witness to the attack is not owed a duty even though he or she might suffer terrible emotional distress as a direct result of the injuries to the best friend.

A negligence case is not necessarily limited to the dog owner or his landlord. Animal control authorities (including animal control departments, police departments, and the cities they serve) have been successfully sued for negligence. See, i.e., Jones v. City of Prairie City, 86 Or.App. 701, 740 P.2d 236 (Or.App. 1987), in which the court held a city police department liable for damages sustained by a dog bite victim who had to submit to painful rabies inoculations because the department euthanized the dog before determining whether it had rabies. Attorney Kenneth M. Phillips and Attorney Wayne A. Ritchie II successfully sued the County of Knox, Tennessee, for the wrongful death of 21-year-old Jennifer Lowe because of the county animal control department’s negligent failure to remove the vicious pit bulls that eventually killed her. See Kenneth M. Phillips, Government Agencies Are Legally Liable for Some Dog Attacks.

The victim’s own negligence sometimes is a cause of an accident. Depending on the comparative negligence (or comparative fault) and contributory negligence laws in the state whose law applies to that accident, the victim’s negligence will hurt or even destroy the possibility of receiving full compensation. For example, if the victim is walking his dog without a leash, and the handler of the attacking dog also is walking her dog without a leash, and the victim is injured trying to keep the dogs from fighting, it is probable that the victim will be held responsible for some part of his own injury. The consequence of such negligence depends on the law of the state where the accident happened. See Contributory Negligence/Comparative Fault Laws in All 50 States by Matthiesen, Wickert & Lehrer, S.C. A summary of those laws is as follows:

• 5 jurisdictions apply the law of contributory negligence. This is an ancient doctrine that says that as little as 1% fault on the part of the victim will reduce his claim to nothing! Those jurisdictions are Alabama, Maryland, North Carolina, Virginia and the District of Columbia.
• 12 states have “pure” comparative fault, meaning that there is no minimum threshold of negligence that the tortfeasor must meet in order for the victim to get compensated. In a “pure” comparative fault state, the victim who proves that the tortfeasor was 50% responsible would receive 50% of the monetary value of his losses and damages — and likewise, a victim who is 90% responsible would receive 10% of the value of his claim. They include Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island and the state of Washington.
• 22 states have “modified” comparative fault, meaning that the victim can recover even if he is negligent up to a certain point. In 11 states (10 states if Maine is excluded from the count because the case was brought under the dog bite statute), that means less than 50% at fault. Those states are Arkansas, Colorado, Georgia, Idaho, Kansas, Maine (but not for dog bite cases under the dog bite statute), Nebraska, North Dakota, Tennessee, Utah and West Virginia. In 22 states (23 states if including Maine dog bite statute cases), it means less than 51% at fault (in other words, if the victim and the defendant are equally at fault, the victim can recover). Those states are Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Maine (only for cases brought under the dog bite statute), Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming.
• One state has a unique standard that uses the terms “slight negligence” and “gross negligence.” The state is South Dakota, which has a statute barring a victim from recovering compensation if his negligence is more than “slight” meaning more than “small, scanty or meager.” Note that “gross negligence” is recognized in a number of states in connection with crimes and negligence cases triggering punitive damages, but only South Dakota uses the term in connection with comparative negligence analysis.

While negligence can come in many flavors, the negligent act must be a cause of the dog bite, or else it will not trigger the doctrine of comparative negligence. For example, the dog bite victim might have had too much to drink, but that fact alone does not result in an automatic finding of comparative negligence, because there is no evidence that the mere smell of alcohol provokes a dog to bite. While it might be wrong to get drunk, as far back as the late 1800’s the courts ruled that a wrongdoer is not “fair game” upon whom anyone may inflict injury without consequences:

“No more in law than in morals can one wrong be justified or excused by another. A wrong-doer is not an outlaw, against whom every man may lift his hand. Neither his life, limbs, nor property are held at the mercy of his adversary. On the contrary, the latter is bound to conduct himself with reasonable care and prudence, notwithstanding the fault of the former; and if by so doing he can avoid injuring the person or property of the former, he is liable if he does not, if by reason thereof injury ensues.” Needham v. San Francisco & S. J. R. Co. (1897) 37 Cal. 409, 419.

On the subjects of dog bites and inebriation, the same court quoted with approval the language of a very old case that said this:

“A boy enters a door-yard to find his ball or arrow, or to look at a flower in the garden; he is bitten and lacerated by a vicious bull-dog; still, he is a trespasser, and if he had kept away would have received no hurt. Nevertheless, is not the owner of the dog liable? A person is hunting in the woods of a stranger, or crossing a pasture of his neighbor, and is wounded by a concealed gun, or his dog is killed by some concealed instrument, or he is himself gored by an enraged bull; is he in all these cases remediless because he is there without consent? Or an intoxicated man is lying in the traveled part of the highway, helpless, if not unconscious: must I not use care to avoid him? May I say that he has no right to encumber the highway, and therefore carelessly continue my progress, regardless of consequences? Or, if such a man has taken refuge in a field of grass or a hedge of bushes, may the owner of a field, knowing the fact, continue to mow on or fell trees, as if it was not so? Or, if the intoxicated man has entered a private lane or byway, and will be run over if the owner does not stop his team which is passing through it, must he not stop them? These are instances, I am aware, of personal rights; but what is true in relation to the person is essentially true in relation to dumb animals and other kinds of property, though, perhaps, the rule would be applied in the latter case with less strictness. It must be so, that an unnecessary injury negligently inflicted in these and kindred cases is wrong, and therefore unlawful.” Needham v. San Francisco & S. J. R. Co. (1897) 37 Cal. 409, 420.

Some people are responsible for the negligence of others. In other words, some people have to pay for losses that they do not cause. This is called respondent superior. Examples are:

• Employers whose employees are negligent during the course and scope of their duties for the employer. See Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 730.
• People who direct the actions of someone else and expose them or the public to the risk of harm, or a greater risk of harm than usual.

There are exceptions to the usual rules of negligence:

• A government agency or employee generally can be sued for negligence only within the rules established by the government entity. In other words, if the government has not consented to be sued for something, it cannot be.
• A young child may be deemed incapable of negligence. For example, an 18-month-old baby usually will not be held comparatively negligent for pulling the tail of a dog. In states like California, children under 5 years of age are incapable of negligence or comparative negligence. (Christian v. Goodwin (1961) 188 Cal.App.2d 650). In a half-dozen states such as Georgia, children are protected from liability up to age 7.

Some victims cannot sue for negligence. Generally, people who assume the risk of injury cannot sue after being injured, because they are deemed to have consented to the injury. For example, veterinarians in many states cannot sue for dog bites suffered when the dog was being treated or was under the control of the veterinarian, unless the dog owner did something out of the ordinary that resulted in the injury, such as concealing a fact about the dog that would have caused the veterinarian to take precautions. This is referred to as the “fireman’s rule” or even “veterinarian’s rule.” In a small number of states, this rule is applied very broadly to cover anyone working with a dog as part of the person’s occupation.

There are other complications that arise in the negligence context (although they are often present in the strict liability cases also). Here are two of them:

• When an accident happens in “State A” and the victim lives in “State B,” there might be a conflict of laws: one state might have strict liability laws while the other might require the victim to prove that the dog was dangerous or the owner was negligent. This conflict requires the application of the principles of jurisdiction, residence, and choice of laws.
• When two or more persons are responsible for an accident, some states have decided that each tortfeasor is responsible for all of the damages (so if one is insured but the other is not, the victim can recover 100% of his or her losses from the one who is). This is called joint and several liability. Other states have determined, however, that (a) each defendant is responsible only for his proportionate share of the general damages (i.e., the pain and suffering, compensation for disfigurement, and other non-economic losses) but any one defendant still can be “hit” with all of the economic losses, (b) only tortfeasors who are at least some percentage at fault (i.e., 20%) can be held responsible for paying all of the losses, or (c) other variations. This can result in a completely blameless victim receiving only a percentage of rightful compensation for his or her damages and losses. When the dog bite victim is a child, insurance companies often argue that the dog owner should pay only a portion of the damages, on the ground that the parent of the injured child failed to supervise him, and therefore was responsible in part for the accident.

Lay persons, therefore, need to understand that issues pertaining to negligence are complicated and generally beyond the scope of lay understanding. It requires an experienced tort lawyer to render a reliable opinion as to whether an act or omission constitutes negligence, and how the related rules will be applied in any particular state. This is one of the reasons why dog bite victims need to have legal representation. For more about this, see Does An Adult Need a Lawyer For a Dog Bite Claim?, and Should Parents Get a Lawyer For Their Injured Child?