A “dog bite statute” is a law that replaces the English “one bite rule” as it applies to dog bites. Most American states have dog bite statutes. Additionally, there are cities and counties that have civil liability ordinances which apply to dog bites. The one bite rule has no place in modern America and therefore every state should have a dog bite statute. Care must be taken to make the law fair and reasonable. It should be noted that the proposed Model Law is not breed specific. The following is a model dog bite statute by Attorney Kenneth Phillips, the author of Dog Bite Law.
Model Dog Bite Statute
by Attorney Kenneth M. Phillips, Author of Dog Bite Law (www.dogbitelaw.com)
DOG BITE STATUTE
1. This statute shall be known as the Dog Bite Statute.
2. The owner, harborer or keeper of any dog shall be civilly liable for all injuries and damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner, harborer or keeper of the dog, regardless of the former viciousness of the dog or that person’s knowledge of such viciousness.
3. A person is lawfully upon the private property of such owner, harborer or keeper within the meaning of this Dog Bite Statute when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner, harborer or keeper of the dog, the owner or lessee of the property, or any person authorized to grant such permission.
4. This Dog Bite Statute shall not apply where the victim was a criminal suspect, and the dog was engaged in the performance of duties for on-duty law enforcement officers or military personnel who were acting within the written guidelines previously adopted by their agencies.
5. This Dog Bite Statute shall not apply where the dog was in the custody of an animal trainer, animal behaviorist, groomer, veterinarian, or an agent or employee of any of the foregoing, for the purpose of rendering a professional service in exchange for compensation.
6. Provocation shall not be a defense to liability under this Dog Bite Statute or any other cause of action, except where the victim (a) was threatening or attempting to commit a crime of violence upon any person, or (b) caused the dog to experience physical pain and the bite was an immediate response to the pain, provided however that the dog bit the victim only once and further provided that the victim was not younger than 5 years of age.
7. The parents having custody of a minor who is the owner, harborer or keeper of any dog shall be additionally liable parties under this Dog Bite Statute.
8. If the victim of the dog bite is a harborer or keeper of the dog, the owner of the dog nevertheless shall be liable under this Dog Bite Statute.
9. It shall not be a defense to liability under this Dog Bite Statute that the owner, harborer or keeper (a) exercised the utmost care to prevent the dog from biting, or (b) did not have custody or control of the dog at the time of the biting.
10. It shall not be a defense to liability under this Dog Bite Statute that the dog did not intend to injure the victim, or that the dog’s action was playful, mischevous, or otherwise not vicious.
11. A person who kills, wounds, or attempts to kill or wound a dog while it is chasing, approaching in a menacing fashion, approaching in an apparent attitude of attack, attempting to bite, or biting a person or livestock, poultry, or a domestic animal other than a cat or dog, or which had bitten, attempted to bite, or killed a person, shall not be liable for the payment of damages to the owner of the dog or any third party, shall not be prosecuted for or convicted of any law pertaining to cruelty to animals, and if the killing, wounding or attempt to kill or wound the dog took place on the premises which are owned by the person or where the person resides, shall not be prosecuted for or convicted of any law pertaining to the possession, display, discharge or use of weapons.
12. Every person who owns, harbors, keeps, or is in temporary possession of a dog shall be required to provide in writing the official registration number of the dog and that person’s name and address, and the name and address of the owner of the dog if that person is not the owner, to anyone whom the dog has bitten, or the parents if the victim was a minor, at the time of the incident or as soon as possible thereafter, whether or not requested to provide such information. The keeper of a dog that injures a person shall not leave the place where the injury occured without complying with the requirements of this section.
13. The owner, harborer or keeper of any dog shall provide a copy of its most recent proof of rabies vaccination to anyone whom the dog has bitten, or the parents of an injured minor, at the time of the incident or as soon as possible thereafter, whether or not requested to provide such information. If the dog never received such vaccination, a written statement to that effect shall be provided to the person who was injured, or the parents of an injured minor.
14. Each owner, harborer or keeper of any dog shall provide “insurance information” as defined herein to anyone whom the dog has bitten, or the parents of an injured minor, when requested to provide such information. “Insurance information” means either (a) a copy of the declarations page of each “applicable policy or policies” as defined herein or (b) a written statement with the name and address of the insurer, the policy number of each “applicable policy or policies,” and the type of “policy or policies.” As used herein, “applicable policy or policies” includes policies through which each owner, harborer or keeper of the dog was or might be insured in any manner for the victim’s injuries, including but not limited to (a) policies for homeowners, condominium owners, co-op owners, mobile home owners, renters, business owners, landlords or dog owners, (b) umbrella policies and (c) excess policies. If any owner, harborer or keeper of the dog was not insured in any manner for the victim’s injuries, such fact shall be communicated in a written statement to the person who was bitten, or the parents of an injured minor.
15. The owner, harborer or keeper of any dog who has actual knowledge that the dog is biting, attempting to bite, or indicating intent to bite another person shall take all necessary measures to prevent the biting or further biting of such person.
16. The following aspects of animal control are mandatory duties which if breached causing damages to any person shall subject this jurisdiction to liability for negligence, with no limitation on a plaintiff’s other remedies: seizing any dog which is reported to have bitten a person other than its owner, seizing any dog which is reported to have chased, approached in a menacing fashion, approached in an apparent attitude of attack, or attempted to bite a person, holding any dog seized hereunder until the conclusion of a hearing to determine whether the dog should be euthanized or returned to its owner, rendering a decision to return a dog to its owner which is shown by clear and convincing evidence to be the incorrect decision.
Notes about the Model Dog Bite Statute
The Model Dog Bite Statute is based on provisions found in the dog bite statutes of a number of states. However, other approaches are possible.
For example, this law applies to the “owner, harborer or keeper.” Many states with dog bite statutes confine liability to the owner, and do not mention the harborer and keeper. Examples: California, Arizona.
This law specifies that the victim must be a “person.” It therefore does not create a remedy in cases of damaged property or injured animals. The dog bite statutes of some jurisdictions make owners liable for damage to property (i.e., tires that are destroyed by chewing) and other animals (such as dogs belonging to neighbors). Examples: New Hampshire and Connecticut. Note also, however, that some of the statutes that cover other animals specifically exclude animals such as cats, wild animals, and sometimes even other dogs.
The model law only applies to bites, not other types of accidents. For example, a dog might run against an older person, causing the latter to fall and break a hip. There are some dog “bite” statutes that cover all canine-inflicted injuries. Examples: New Hampshire and Connecticut. If a more-inclusive statute is desired, the word “bitten” in paragraph 2 should be followed by the words “or injured.” Additionally, similar changes should be made in paragraphs 6 and 9.
This law makes exceptions for a variety of canine professionals. The states are divided, however, as to whether people who work with dogs should be left without a remedy if mauled. The trend appears to be to leave our dog workers with no remedy, so the model law reflects this.
The model law provides a definition of “provocation.” In dog bite law, the provocation defense is similar to comparative negligence or contributory negligence. (See Provocation: the Myth at Why Dogs Bite, which is a section of Dog Bite Law (www.dogbitelaw.com).) The courts have struggled at times to determine what constitutes provocation. The most correct view is that provocation is an action that justifies an immediate, measured, violent response. The model law proposes essentially a limited right to self-defense on the part of the dog.
The provision regarding the killing or wounding of an attacking dog is derived from section 955.28 of the Ohio Revised Statutes. See also section 822.013 of the Texas Health & Safety Code and Chase v State of Texas, __ SW2d __ (Texas App. 2014).
The model law requires each owner, harborer or keeper of the attacking dog to provide insurance information to the victim or parents of the victim, upon request. A small number of states require this already but most do not. This provision will reduce unnecessary litigation by allowing a defendant’s insurance company the opportunity to adjust the claim before it turns into a lawsuit.