Liability for Non-Bite Injuries

Overview of Non-Bite Injury Cases Involving Dogs

A dog can injure a person not only by biting, but by other means, and under certain circumstances the owner, keeper or harborer of the dog can be held liable. A dog can injure a person by a scratch, or can trip, knock down, or frighten a person and cause them to fall. For example, dogs caused 88% of the 86,629 fall injuries treated in emergency departments from 2001 to 2006. (See CDC. Nonfatal Fall-Related Injuries Associated with Dogs and Cats – United States, 2001-2006, MMRW, March 27, 2009, 58(11); 277.) Children can be struck or pushed by dogs, resulting in significant injuries. (See “Non-bite dog-related” injuries: an overlooked injury mechanism in the pediatric population, J Trauma. 2011 Nov;71(5 Suppl 2):S531-3.)

Grounds

Non-bite injuries can result in liability on the part of the dog owner, harborer or keeper, based on the following legal grounds:

  • The one bite rule. The traditional rule is that liability for the actions of a dog is based on knowledge on the part of the owner, harbor or keeper that the dog is vicious or has a dangerous propensity. Ironically, this is actually the so-called one bite rule itself, which does not require an actual bite as a condition for liability. See The One Bite Rule. So if the owner, harborer or keeper knows that the dog has a tendency to, for example, charge up against people, he will be held liable if the dog charges up against a person and causes the latter to fall and sustain injuries. However, it has been held that the mere presence of a dog, in a place where it was not supposed to be, can result in liability on the part of the owner or occupier of that place. See the Cramer and Baley cases, noted below.
  • Negligence. Restatement of Torts (Second), section 302(b), states, “A negligent act or omission may be one which involves an unreasonable risk of harm to another through … the foreseeable action of … an animal ….” The presence of a dog in the wrong place, which causes a person to trip and fall, can result in liability (see the Cramer and Baley cases, noted below). Comment d of section 302(b) says that a reasonable person is required to know the habits and propensities of animals, and, insofar as that knowledge would lead him to identify as customary or normal a particularly dangerous action on the part of an animal, he is required to anticipate that act and provide against it. See Negligence.
  • Negligence per se. A dog that is running loose presents a risk of harm in places like cities. For that reason, there are so-called “leash laws” and laws that prohibit a dog from “running at large” and trespassing. The violation of an animal control law of this type is considered to be negligence per se or, in some states, evidence of negligence. For more, see Negligence Per Se.
  • Statute or ordinance. Additionally, the dog bite statutes of a number of states, and the ordinances of a number of cities and counties, impose strict liability not only for bite but also any injuries whatsoever (to a person and even to property). When reviewing statutes and ordinances, determine whether they use the word “bite” or the word “injure.”

An example of negligence is suffering or permitting a dog to be in a place where it ought not to be. In Cramer v. Oak Haven Resort, Inc., No. 3:16-cv-491-HBG, at 14-15 (E.D. Tenn. Aug. 31, 2018), the court rejected a bid for summary judgment made by a property owner on this basis:

Oak Haven asserts that Plaintiff must establish that the dog had a dangerous propensity of which Oak Haven was aware and cites to several Tennessee decisions holding the same. The Court disagrees with Oak Haven’s position because the dog’s dangerous propensities are irrelevant in the instant matter. As the Court has previously explained, all parties agree that Bear did not attack Plaintiff or act vicious toward anyone. See [Doc. 71 at 10] (“As this Court has already explained, Plaintiff was not bitten or attacked by Bear—she allegedly tripped over Bear. Whether Bear exhibited any dangerous behavior is irrelevant because it was not Bear’s behavior that caused the fall, but instead, the mere presence of Bear.”). Accordingly, the Court finds Oak Haven’s position not well taken.

Similarly, in Baley v. JF Hink & Son (1955) 133 Cal. App. 2d 102, the plaintiff was injured when she tripped over a small dog in a department store. The plaintiff had been shopping and did not see the dog, which was on a leash. The Court of Appeals held that the facts supported a claim against the store based on negligence.

Dog Fright Cases

One of the most interesting non-bite injuries is referred to as “dog fright.” A dog fright case is one in which the behavior of the dog causes a reasonable person to take defensive action which results in that person’s injury. In one such incident, Rottweilers charged at a jogger as he ran past a golf course; he altered his course and went momentarily onto the bike lane of a thoroughfare, where the side-view mirror of a passing truck struck him in the back of his head, causing massive brain injuries. A jury awarded $6 million against the owner of the dogs and the owner and manager of the golf course. (Greg Moran, “Man struck by truck while fleeing dogs awarded $6 million,” San Diego Union-Tribune, February 28, 2002.)

Here are examples from various states:

In Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (1977), the owners of a German Shepherd dog knew that it would run and bark at strangers as if it were going to attack them. The plaintiffs, who were unwittingly trespassing on the dog owners’ property, tried to escape the dog, fell off a rock wall, and were injured. The supreme court held that the facts might support a verdict for the plaintiffs based upon the negligence of the dog owners.

In Machacado v. City of N.Y., 80 Misc.2d 889, 365 N.Y.S.2d 974 (1975) the defendant’s dog, which was kept behind a fence adjacent to the public sidewalk, was known to bark furiously and hurl itself against the fence in an effort to attack pedestrians. The plaintiff made a sudden move to escape which resulted in injury. The supreme court held that the facts could amount to negligence.

In Henkel v. Jordan, 7 Kan. App. 2d 561, 644 P.2d 1348 (Kan.App.1982) the issue was whether the defendants could properly be held liable for personal injuries suffered by a plaintiff when, frightened by defendant’s “bouncy, pesky, yappy little dog,” he lost control of and fell from a bicycle. The dog owners had been put on notice by numerous individuals that the dog had frightened people who passed along the street. The court held that the facts could support a finding of negligence.

Strategy for Handling a Non-Bite Injury Case Involving a Dog

As in any other case, has to be an injury. It should be significant because these are difficult cases to win. The defendant has to be the person who controlled the dog or lost control of the dog, not the hotel, store, or house where it happened.

As indicated above, a non-bite injury case is either a knockdown case or a dog fright case, the difference being that there is physical contact in one but none in the other.

There are appellate cases in various jurisdictions involving knockdown cases. In most places, you have to prove that someone lost control of the dog because of negligence. If there was no loss of control, you have to satisfy the one bite rule, meaning you have to prove that the dog previously knocked down a person. By “negligence” in this context we mean general negligence and negligence per se, the latter being essentially the violation of a law that was intended to prevent such an accident. For example, if the dog was running loose without a leash.

Dog fright cases are difficult to win. In a case handled by Attorney Kenneth M. Phillips, the author of Dog Bite Law (dogbitelaw.com), a city law clearly made the dog owner liable but the judge refused to follow it, and the client dropped it because an appeal would have cost too much and taken too long.

For further reading, attorneys might be interested in LIABILITY OF DOG OWNER FOR INJURIES SUSTAINED BY PERSON FRIGHTENED BY DOG (30 A.L.R.4th 986).