The doctrine of negligence per se holds that when a person violates a statute or ordinance intended wholly or partially to prevent a certain type of harm, and the violation causes another person to suffer that harm, then one who violated the law was negligent. In some states, the violation establishes the cause of action without further proof, while in others it constitutes only a presumption of negligence or evidence of negligence.
States, counties and cities often have laws requring dogs to be on leash, or prohibiting them from trespassing or being at large. With few exceptions, courts have ruled that violating such laws can be the basis of liability or at least evidence of liability. In the majority of jurisdictions, the violation constitutes negligence per se. For example, see Brotemarkle v. Snyder, 99 Cal. App. 2d 388 (1950); Duffy v. Debhart, 52 Del. 312 (1960); Alex v. Armstrong, 215 Tenn. 276 (1964). In a minority of states, the violation is only evidence of negligence, not quite negligence per se. See, i.e., Moura v. Randall, 119 Md. App. 632, 705 A.2d 334 (1998); Butler v. Frieden, 208 Va. 352 (Va. 1967).
The differences between these three types of animal control laws are subtle but important:
- A leash law requires that a dog be on a leash when off it's owner's property. Usually the length of the leash is specified, and it is stated that there must be a person at the other end of the leash, preferably someone who is of sufficient age and capable of controlling the dog. A leash law that permits a dog to be unleashed if it is under "voice command" or "the control of its owner or keeper" has built-in loopholes which should be eliminated.
- A prohibition against canine trespass makes it a crime for a dog to be on another person's private property, without the permission of the owner of that property, whether or not the dog is leashed. Permission can be express or implied.
- An at-large law makes it illegal for a dog to be off it's owner's property, or upon that property if it is unfenced, unless the dog is confined, leashed or under the control of its owner. Sometimes electronic containment systems are specifically outlawed. The loopholes in such laws result from the term "the control of the owner," and the use of the words "allow" and "permit." (See below for further details.)
There is one state that puts peculiar reliance upon the theory of negligence per se. The State of Georgia appears to recognize a negligence claim only if it involves a "trimmed down" version of negligence per se, as set forth in Georgia's dog bite statute, OCGA 51-2-7. There is no other state whose dog bite statute relies so heavily on the doctrine of negligence per se.
This doctrine is of prime importance to dog bite victims in one bite states. (See the list of states at The One Bite Rule.) When the attacking dog does not have a provable history that demonstrated his dangerous or vicious propensity, the victim in a one bite state must find another ground for recovery, or be left without a remedy. The violation of one of these animal control laws usually provides such grounds.
The biggest issue that arises in such cases is whether the violation of the criminal statute or ordinance requires proof of a particular state of mind on the part of the defendant. Depending upon its interpretation, a law that uses the words "permit" or "allow" (i.e., "a dog owner shall not permit or allow his dog to run at large") may or may not be violated if a dog digs under a fence, escapes the yard through a gate that usually is kept closed, or runs out the front door when it is opened to accept delivery of a package. Courts are split in such cases, some holding that there is no violation without proof of intent to let the dog out, others holding that the dog owner must be negligent or must have knowledge of the escape for liability to attach, and yet others declaring that the violation occurs when the dog is loose regardless of the owner's state or mind or knowledge of his dog's whereabouts.
Arguably, a strong animal control law should focus on the dog and not the owner's intent, knowledge or degree of care -- in other words, canine trespass and at-large laws should be drafted and interpreted as imposing strict liability upon dog owners. The 2006 killing of Dianna Acklen in Tennessee illustrated the effeteness of a statute using the word "allow." The state's at-large law read as follows: "It is unlawful for any person to allow a dog ... to go upon the premises of another, or upon a highway or upon a public road or street...." Three dogs were running at large and savagely mauled the 60-year-old librarian as she took her nightly walk. Because the statute used the word "allow," however, no criminal charges were brought against the dog owners, because they denied knowing or permitting their dogs to be loose. (In 2007, Attorney Kenneth Phillips assisted in drafting legislation for the State of Tennessee that closed the loophole brought to light in the Acklen case.)
Another consequence of a poorly worded leash law, trespass law, or running at large law is that it can result in prolonged litigation. When the violation of a statute or ordinance requires a certain state of mind on the part of the defendant, that state of mind is usually proved by circumstantial evidence. In other words, to prove that an owner allowed his dog to be outside on the day it mauled a victim, it is necessary to get a confession from the owner (which is not likely), or to show that the owner habitually permitted the dog to be outside without a leash (implying that it was also allowed to be at large on the day of the attack). The Braeden Kelly Case in Georgia illustrated the lengths that the victim must go in order to establish, by circumstantial evidence, that the dog owners permitted their dog to be out without a leash in violation of local law. Over a dozen depositions were taken during the course of a week, and the victim then was required to beat the dog owners' motion for summary judgment, which was partially based on the issue of whether they permitted their dog to be at large on the date of the attack. The victim prevailed after more than a year of litigation. (Attorney Kenneth Phillips, who represented Kelly, will make the case materials available free of charge to Georgia attorneys who contact him.)