A dog bite victim in Idaho can recover compensation under the doctrines of negligence, negligence per se, scienter, and intentional tort. There is no dog bite statute so this is a “one-bite state.”
No liability based on a statute
In Idaho, a statute may define the applicable standard of care and a violation of that statute can constitute negligence per se. Boswell v. Steele, 348 P.3d 497, 506 (Idaho Ct. App. 2015). However, the Idaho Supreme Court, in dicta, rejected an interpretation of Idaho Code section 25-2805 that would have made it the foundation of a negligence per se claim, effectively turning Idaho into a strict liability state. From Bright v. Maznik (Idaho 2017) 162 Idaho 311, 315:
Liability based on scienter (the one-bite rule)
The traditional doctrine that makes a person liable for harm inflicted by a domestic animal is referred to as “scienter” (the Latin word for “knowingly”), “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 (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 are not met, however, the victim cannot employ this doctrine as a ground for recovery. See The One Bite Rule.
The one-bite rule is the foundation of dog bite law. It exists in every state. The majority of American states have supplemented it with statutes that make dog owners responsible for all bites including the first one. These so-called “dog bite statutes” sometimes extend to people other than dog owners and injuries other than dog bites. Furthermore, the majority of states impose liability on dog owners and others under a variety of other legal doctrines, including negligence, premises liability, nuisance, and negligence per se for a violation of an animal control law such as a leash law, a law prohibiting dogs from being at large, or a law prohibiting dogs from trespassing. If the one-bite rule or any other doctrine works against a victim, therefore, another might support his claim for compensation. See generally Legal Rights of Dog Bite Victims in the USA.
As in all English-speaking jurisdictions within and outside the United States, Idaho follows the one-bite rule. “In cases where a domestic animal is not trespassing, the owner of the animal is liable for injuries caused if the owner knew or should have known of the animal’s vicious or dangerous tendencies. ” Boswell v. Steele (Idaho Ct. App. 2015) 158 Idaho 554, 560; cited with approval in Bright v. Maznik (Idaho 2017) 162 Idaho 311, 316.
This also applies to people and legal entities such as stores that know a dog is dangerous. For example, the liability of the store is based on the knowledge the dog was vicious or had a dangerous propensity. “A store owner would also have a duty to protect its patrons from a dog that the store owner knew or should have known was vicious or had a dangerous propensity.” Braese v. Stinker Stores, Inc. (Idaho 2014) 157 Idaho 443, 446.
Whether the prior bites or nips of people should have put a person on notice of the dog’s dangerous tendency is a question for the jury. As was stated in Boswell v. Steele (Idaho Ct. App. 2015) 158 Idaho 554, 561:
The Boswells presented testimony that Zoey had bitten two other individuals prior to Zoey biting Stephen. The Steeles allege the prior incidents complained of by the Boswells were not bites, but the dog was merely being protective by nipping at the individuals. Whether these incidents constituted notice of vicious propensity is a question for the jury. The incidents, though not severe, resulted in injury evidenced by bleeding and the need to clean the wounds. The Boswells pled a cause of action and sufficiently supported it with evidence to survive summary judgment.
Negligence per se
States, counties, and cities often have laws requiring dogs to be on leashes, or prohibiting them from being at large or trespassing. With few exceptions, courts have ruled that violating such laws can be the basis of liability. Idaho recognizes the doctrine of negligence per se. “[I]n Idaho, it is well established that statutes and administrative regulations may define the applicable standard of care owed, and that violations of such statutes and regulations may constitute negligence per se.” Sanchez v. Galey, 112 Idaho 609, 617, 733 P.2d 1234, 1242 (1986). “The effect of establishing negligence per se through violation of a statute is to conclusively establish the first two elements of a cause of action in negligence.” Slade v. Smith’s Mgmt. Corp., 119 Idaho 482, 489, 808 P.2d 401, 408 (1991). As was stated in Boswell v. Steele (Idaho Ct. App. 2015) 158 Idaho 554, 563:
In order to replace a common law duty of care with a duty of care from a statute or regulation, the following elements must be met: (1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; and (4) the violation must have been the proximate cause of the injury.
Idaho permits a dog bite victim to recover compensation on the ground of negligence. “[E]very person, in the conduct of his or her business, has a duty to exercise ordinary care to prevent unreasonable, foreseeable risks of harm to others.” Turpen v. Granieri (1999) 133 Idaho 244, 247; Sharp v. W.H. Moore Inc. (1990) 118 Idaho 297, 300.
There are four elements that must be proved to establish simple negligence. In Idaho, a cause of action for negligence requires proof of the following: (1) the existence of a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injury; and (4) actual loss or damage. Black Canyon Racquetball Club, Inc. v. Idaho First Nat’l Bank, N.A., 119 Idaho 171, 175–76, 804 P.2d 900, 904–05 (1991); Sanders v. Kuna Joint School Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct.App.1994).
Failure to warn the victim that the dog might bite is one form of negligence. Boswell v. Steele (Idaho Ct. App. 2015) 158 Idaho 554, 562 (“Mary having failed to warn Stephen that Zoey may unexpectedly bite provides sufficient evidence for a jury to conclude Mary breached a duty to warn Stephen.”)
Landlord liability (premises liability)
A landlord or land owner can be held liable only for harboring a vicious dog or allowing a tenant or other resident to do so. “To show the Mazniks violated section 25-2805(2), Bright had the burden to prove that they “harbor[ed]” a dog on the property. ” Bright v. Maznik (Idaho 2017) 162 Idaho 311, 315. “A property owner may have a duty to protect others from an animal if the property owner had notice of the animal’s vicious or dangerous propensity, even if the property owner is not the animal’s owner. ” Bright v. Maznik (Idaho 2017) 162 Idaho 311, 316. Actual or constructive knowledge is required. Bright v. Maznik (Idaho 2017) 162 Idaho 311, 316 (“it is undisputed that the Mazniks had neither actual nor constructive notice of the dog’s dangerous or vicious propensity.”)
The fact that a landlord accepted a pet deposit of $100.00 from a tenant, for the purpose of keeping one dog on the rented premises, was insufficient evidence that the landlord undertook a duty to protect third parties from the tenants’ dangerous dog. Boots v. Winters (2008) 145 Idaho 389.
The provocation defense
Provocation is a defense to a dog attack claim when the victim does something to hurt the dog or otherwise justifies a limited defensive measure by the dog. See Provocation: the Myth.
Idaho courts agree. For example, in Boots ex rel. Boots v. Winters, 145 Idaho 389, 395, 179 P.3d 352, 358 (Ct.App.2008), the Idaho Supreme Court concluded the plaintiff “provoked the brown dog’s attack by kicking the fence and swinging his jacket at the dog.” Contrast this with extending a hand toward a dog to allow it to sniff the hand, which was held to not constitute provocation. “Extending a closed hand towards what appears to be a friendly dog to allow the dog to sniff the hand does not undisputedly amount to provocation.” Boswell v. Steele (Idaho Ct. App. 2015) 158 Idaho 554, 564.