A dog bite victim in Tennessee can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort. However, when a bite occurs on the dog owner’s property, there is a “residential exclusion” to the statute which requires the victim to prove the elements of the one bite rule. The Tennessee dog bite statute was written by Attorney Kenneth M. Phillips, the author of Dog Bite Law, except for the “residential exclusion” which was an amendment to his draft.
- The Tennessee Dog Bite Statute
- The One Bite Rule in Tennessee
- Negligence and Dog Bites in Tennessee
- Negligence Per Se in Tennessee
- Landlords and Dog Bites in Tennessee
- Chaining and Dog Bites in Tennessee
- Further Research
- Video of Attorney Kenneth M. Phillips in the Tennessee Legislature Arguing Against the One Bite Rule
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
In 2007 Tennessee passed the Dianna Acklen Act of 2007, T.C.A. sec. 44-8-413, establishing strict liability for canine-inflicted injuries (bites and other injuries) under specific circumstances. Attorney Kenneth M. Phillips, the author of Dog Bite Law (this website), wrote the original bill on which the law was based. (See the video of him testifying about the need to abandon the “one bite rule.”)
The dog bite statute creates liability if one or both of the following conditions exist: (a) the “owner” (defined below) fails to keep the dog under reasonable control, or (b) the dog is running at large. Here is how one court described it:
“Under the Dog Bite Statute, a dog owner ‘may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog owner knew or should have known of the dog’s dangerous propensities’ if (1) the owner is unable to keep the dog under reasonable control at all times; or (2) the dog is running at large. Tenn. Code Ann. § 44-8-413(a)(1)-(2). In other words, a dog owner is held strictly liable if the owner’s dog injures a person because the owner failed to exercise reasonable control over the dog or the dog is running at large.” (Searcy v. Axley, No. W2017-00374-COA-R3-CV, 5 (Tenn. Ct. App. Oct. 19, 2017).)
The statute defines “owner” as “a person who, at the time of the damage caused to another, regularly harbors, keeps or exercises control over the dog, but does not include a person who, at the time of the damage, is temporarily harboring, keeping or exercising control over the dog.” (Sec. 44-8-413 subd. (e)(1).)
The statute defines “running at large” as when “a dog goes uncontrolled by the dog’s owner upon the premises of another without the consent of the owner of the premises, or other person authorized to give consent, or goes uncontrolled by the owner upon a highway, public road, street or any other place open to the public generally.” (Sec. 44-8-413 subd. (e)(2).)
Note that if the bite occurs on property owned by the dog owner, the victim must prove the elements of the one bite rule, namely that the dog owners “knew, or should have known, of their dog’s dangerous propensities.” (Searcy v. Axley, No. W2017-00374-COA-R3-CV, 6-8 (Tenn. Ct. App. Oct. 19, 2017).) This exception is referred to as the “residential exclusion.”
There are two other exceptions under the statute:
- There is no liability for a dog that is doing police or military work or protecting someone from being attacked, or is securely confined in a kennel or something similar.
- There is no liability if the victim provoked the dog.
The residential exclusion is a significant shortcoming of the Tennessee statute. It requires a victim to prove scienter (i.e., that the dog’s owner knew or should have known of the dog’s “dangerous propensities”) if the injury-producing incident happened on residential, farm or other noncommercial property that the dog owner owned, leased, rented or was upon by virtue of the property owner’s invitation.
Tennessee is the only USA state that has a “residential exclusion” in its dog liability statute. The exclusion was not in the bill which was drafted by Attorney Phillips. It is a large loophole in the statute because over 50 percent of bites occur on the dog owner’s property. This means that the residential exclusion leaves over 50% of otherwise-qualified victims in Tennessee without compensation. Guests in a dog owner’s home are not covered by his insurance, while strangers he encounters on the street are fully covered. For example, a dog owner’s 6-year-old neice, bitten in the face, would not receive the necessary money for cosmetic surgery in years to come, while an unknown person bitten outside the house would. This is the type of legal loophole that the insurance industry puts into laws because no thinking, honest or compassionate person would do so.
If you are not a lawyer, but are a dog bite victim or a dog owner whose dog bit a person, the complexity of this law requires that you consult an attorney before talking to the other party’s insurance adjuster.
A dog owner or the keeper of a dog may be held civilly liable for the damages caused by his dog under the “scienter” cause of action, also known as “common law strict liability” and the “one bite rule.”
The Tennessee Supreme Court generally described liability for dog bite cases under the common law stating:
“[T]he general rule . . . [regarding] liability of owners or keepers of domestic animals for injuries to third persons is that the owner or keeper of domestic animals is not liable for such injuries, unless the animal was accustomed to injure persons, or had an inclination to do so, and the vicious disposition of the animal was known to the owner or keeper.” (Missio v. Williams , 167 S.W. 473, 474 (Tenn. 1914).)
In Fletcher v. Richardson, 603 S.W.2d 734, 735 (Tenn. 1980), the court stated:
“The owner or keeper of the dog is not answerable for injuries done by it when in a place it had a right to be, unless the dog was in fact vicious or otherwise dangerous, the owner or keeper knew, or under the circumstances should have known, of the dangerous disposition of the animal, and the injuries resulted from the known vicious or dangerous propensity of the animal. The basic key to recovery of damages for injuries caused by a dog is the knowledge of the owner or keeper that the animal is vicious or has mischievous propensities.”
Plaintiffs suing for injuries or death caused by a dog bite therefore must prove three elements. “First, they must prove that the defendant owned the dog. Second, they must prove that the defendant’s dog caused the injuries. Third, they must prove that the defendants knew or should have known about the dog’s dangerous propensities.” Eden v. Johnson, No. 01A01-9603-CV-00141, 1996 WL 474428, at *2 (Tenn. Ct. App., Aug. 21, 1996) (citing Thompson v. Thompson, 749 S.W.2d 468, 470 (Tenn. Ct. App. 1988)).
A person has “knowledge” if they knew or should have known about the dog’s viciousness or dangerousness:
“Knowledge of the owner or keeper that the dog is vicious is sufficient to sustain liability, without showing that it had ever bitten any one.” Missio v. Williams , 167 S.W. 473, 474 (Tenn. 1914).
“Therefore, dog owners “are liable for injuries done by [the dog], even without notice of their vicious propensities, if the animals are naturally mischievous; but, if they are of a tame and domestic nature, there must be notice of the vicious habits.”” (Id.)
“The question in each case is whether the notice was sufficient to put the owner on his guard and to require him, as an ordinarily prudent man, to anticipate the injury which has actually occurred.” (13 AM. JUR. 2d Knowledge of Animal’s Vicious Propensities § 3, cited as authority in Searcy v. Axley, No. W2017-00374-COA-R3-CV, 9 (Tenn. Ct. App. Oct. 19, 2017). The Searcy case is available as a PDF at http://www.tncourts.gov/sites/default/files/searcycoreyopn.pdf.)
The state allows dog bite victims to recover damages caused by negligent dog owners. There must be proof of general negligence or failure to control. For examples, see Mayes v. LaMonte , 122 S.W.3d 142, 145 (Tenn. Ct. App. 2003)(“We believe this case is governed by general negligence principles, not that aspect of dog bite law which imposes liability on an owner where there are “injuries resulting from known vicious tendencies or propensities.”); also see McAbee v. Daniel , 445 S.W.2d 917, 925 (Tenn. Ct. App. 1968)(holding that the requirement that dog owner knew of dog’s dangerous propensities as “required by Missio . . . is not required in the case at bar where there is proof of negligence of the part of the defendant . . . in failing to properly control the dog.”).
The Tennessee formula for proving negligence is as follows :
“The owner or keeper of domestic animals is liable for injuries inflicted by them only where he has been negligent, the animals were wrongfully in the place where they inflicted the injuries, or the injuries are the result of known vicious tendencies or propensities. A person has a right to own or keep domestic animals of any kind provided they are so restrained as to not expose others engaged in their ordinary or lawful pursuits to danger. The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and in so far as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them.” McAbee v. Daniel, 445 S.W.2d 917, 923 (Tenn. App. 1968).
The negligence cause of action was held not to apply to a case where parents of child showed that a dog bit a child inside the dog owner’s home. The reason given was that “the Dog Bite Statute abrogates their claim for general negligence.” (Searcy v. Axley, No. W2017-00374-COA-R3-CV, 12 (Tenn. Ct. App. Oct. 19, 2017).) Thus, if the bite occurs on property owned by the dog owner, the victim must prove the elements of the one bite rule, namely that the dog owners “knew, or should have known, of their dog’s dangerous propensities.” (Searcy v. Axley, No. W2017-00374-COA-R3-CV, 6-8 (Tenn. Ct. App. Oct. 19, 2017).)
The violation of a statute or regulation is negligence per se as to members of the class that the statute or regulation is intended to protect. Alex v. Armstrong, 215 Tenn. 276, 385 S.W.2d 110 (1964); Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. App. 1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn. App. 1978). See Further Research (below) for a link that will enable you to research local laws on which this cause of action is based.
Langford v. Darden, No. M2004-00158-COA-R3-CV (Tenn.App. 02/16/2005) was a dog bite case against an absent landlord. The plaintiff argued that owing to the pervasive publicity about the viciousness of the tenants’ dog, the landlord had constructive notice of its propensity to violence and should therefore be held liable. Summary judgment was granted to the landlord. The court of appeals affirmed. It stated that since Quarles was neither the owner nor the harborer of the dog, he could be held liable for the acts of the dog only upon proof that he had knowledge of the propensity of the dog to violence, and that he retained sufficient control over the leased premises to afford an opportunity for the landlord to require the tenant to remove the dog.
The state does not have a law that prohibits chaining. It is actually encouraged by some cities in Tennessee. For example, City of Memphis Ordinance § 5-60 provides:
Dog owners shall, at all times, keep their animals on a leash or other suitable restraint or confined by a fence on their property or the private property of another, with the permission of the owner of that property so as to prevent the animal from being at large, biting or harassing any person engaged in a lawful act, interfering with the use of public property or with the use of another person’s private property, or being in violation of any other section of this Code. No animal shall be allowed to run at large even on the property of the owner of such animal, unless confined by a fence or other suitable restraint.
State statutes and related materials can be found at the Tennessee section of Laws.com. City and county laws can be found at MTAS Municipal Codes. Always read both the city and county laws, not one or the other, because both can apply to the same case.
Video of Attorney Kenneth M. Phillips in the Tennessee Legislature Arguing Against the One Bite Rule
In 2007, State Senator Douglas S. Jackson (D-Dickson) enlisted Attorney Kenneth M. Phillips to draft new state laws about dog bites and animal cruelty. Mr. Phillips drafted 5 bills, all of which were enacted with some changes. He also testified before the Senate Judiciary Committee about the unfairness of the one bite rule. His testimony was recorded in this video. It is the most damning indictment of the one bite rule that can be found anywhere, and it is applicable to any state or country that still applies the rule.