A dog bite victim in Arkansas can recover compensation under the doctrines of negligence, scienter and intentional tort. In at least one county, there is a strict liability dog bite ordinance. There is a criminal statute that can be used to require a defendant to pay the victim’s medical bills (but not full compensation for pain, suffering, scarring, loss of income, and other damages). There is no dog bite statute so, except in counties with a strict liability dog bite ordinance, this is a “one bite state.”
- Negligence proved by violating an animal control law
- Criminal statute and victim’s medical bills
- Strict liability imposed by ordinance
- Landlord liability
- Suggestions for improving Arkansas’ dog bite laws
- Forms and templates for attorneys
The traditional doctrine that makes a person liable for harm inflicted by a domestic animal is referred to as “scienter” (the Latin word for “knowledge”), “common law strict liability,” and “the one bite rule.” As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer, or keeper of a dog if (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog’s previous conduct. If either of those conditions is not met, however, this doctrine prevents the victim from recovering anything. For more information about the scienter cause of action, see Legal Rights of Dog Bite Victims in the USA. To learn more about the one-bite rule, see The One Bite Rule.
The doctrine of negligence is well established in Arkansas law. To prevail on a claim of negligence, the plaintiff must prove the defendant owed a duty to the plaintiff, the defendant breached the duty, and the breach was the proximate cause of the plaintiff’s injuries. See Wilson v. Rebsamen Ins., Inc., 330 Ark. 687 (1997).
In a dog attack case, a dog owner can be found to have acted negligently even without proving the dog previously harmed a person. For example, a dog owner can be found liable for negligence if the dog owner allowed or suffered the dog to run loose and injure a person. For example, in Bergetz v. Repka (Ark. 1968) 244 Ark. 60, 63, the court held that a dog owner was negligent for letting her German shepherd roam on surrounding real property, which eventually caused a neighbor to be injured:
A jury might fairly conclude that an encounter between that dog and an apparently timid woman leading a smaller dog upon a leash might foreseeably involve an injury to Mrs. Bergetz. “It is not,” as we said in Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S.W. 1199, 32 L.R.A. (n.s.) 825 (1911), “necessary that the particular injury should have been foreseen.”
Similarly, in Bolstad v. Pergeson (Ark. 1991) 305 Ark. 163, the dog owner was made responsible on the ground of negligence when his at-large dog ran into a car and damaged it. The dog had never exhibited a dangerous propensity and was simply chasing a squirrel when the accident happened. Holding the dog owner liable, the court cited a jury instruction that said an animal owner “has a duty to use ordinary care to keep his animals from running at large when he knows or reasonably should know that such animals are likely to cause injury or damage to others.” The court said the instruction “accurately sets forth the common law of negligence which applies to owners of animals running at large.” As to the fact that the dog never caused harm in the same manner, the court said, “it is not necessary to foresee a particular injury, but only to foresee that the general act or omission is likely to cause injury.”
For further discussion of how this doctrine applies to dog bite cases, see Negligence.
A victim may base his case on the fact that the bite happened when the dog owner violated a statute, ordinance, or regulation enacted for people’s safety, such as a leash law, a law prohibiting dogs from being at large, or a law prohibiting dogs from trespassing. The violation is considered to be evidence of negligence. See Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 397 (1983).
Although Arkansas does not have a civil dog bite statute, it does have a criminal statute that can assist a dog bite victim in receiving compensation for medical expenses. Arkansas Code section 5-62-125 makes it a misdemeanor to negligently allow a vicious dog to inflict serious injury or death upon a person. This criminal statute permits a court or jury to require the defendant to pay for the victim’s medical bills. In a sense, therefore, Arkansas has some sort of dog bite statute that protects victims.
At least one county in Arkansas has an ordinance that makes a dog owner strictly liable when his dog bites a person. See Benton County Code of Ordinances, sec. 10-2:
Arkansas laws impose no liability on a landlord to third parties injured by a tenant’s animals. Bryant v. Putnam (Ark. 1995) 322 Ark. 284, 285. This is true even when the landlord is aware of the dog’s dangerous tendency to bite. Mills v. Finch (Ark. Ct. App. 2010) 2010 Ark. App. 199.
Nevertheless, Attorney Kenneth M. Phillips prevailed in a case against a landlord based on the doctrine of respondeat superior. Mr. Phillips, the author of Dog Bite Law, represented Matthew Guess, a 4-year-old boy who was attacked and disfigured by pit bulls owned by the manager of a farm and used by him to roam at large for the purpose of chasing predatory animals away from the farm animals.
The violation of Arkansas Code section 5-62-125 (see above) is evidence of negligence but not negligence itself. This is because Arkansas courts do not apply the doctrine of negligence per se. (For information about the doctrine of negligence per se, see Negligence Per Se.)
There is controversy as to whether Arkansas would apply the doctrine of negligence per se to a dog bite case. In Jackson v. Cadillac Cowboy, Inc., 986 S.W.2d 410 (Ark. 1999) the Arkansas Supreme Court referred to a violation of the state law prohibiting the sale of alcohol to intoxicated persons as “some evidence” of negligence, but used language suggestive of the doctrine of negligence per se. Id. at 415. But in Branscumb v. Freeman, 200 S.W.3d 411, 417 (Ark. 2004), the court backed away from its negligence per se language when it declined to extend Jackson to “recognize a private cause of action for negligence against the owner of an uninsured motor vehicle based solely upon the violation” of the Arkansas motor vehicle safety statutes.
If a court can be persuaded to adopt the doctrine of negligence per se, however, a victim would be able to receive full compensation for his injuries rather than merely the medical costs provided under that statute. Therefore, it is suggested that attorneys study the Pennsylvania rulings on this subject. The courts of that state apply negligence per se for violations of criminal statutes pertaining to dog bites. See “The Miller and Hake Cases” at Pennsylvania. The reasoning set forth in those cases is applicable in Arkansas too.
More to the point, Arkansas needs a dog bite statute that imposes strict liability on a dog owner whenever his dog bites or otherwise injures a person, even if it is the first time and the owner was not negligent, provided the victim was not trespassing and did not provoke the dog. See Attorney Kenneth M. Phillips’ Model Dog Bite Laws.