A dog bite victim in New Mexico 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."
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
New Mexico does not have a dog bite statute. In the usual case, there are two basic grounds for liability: scienter under the one bite rule, and negligence.
The scienter cause of action makes the owner of a dog liable for dog bite injuries if the owner knew, or should have known, that the dog was vicious or had a tendency or natural inclination to be vicious. Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953). This imposes strict liability on the dog owner. (Smith v. Village of Ruidoso (1999) 994 P.2d 50).
The key to the scienter cause of action is the owner's knowledge of the dangerousness of his dog. "Scienter" is Latin for "knowledge." If the dog owner did not know (or could not have reasonably come to the conclusion) that the dog had the dangerous propensity to bite or otherwise injure people, there will be no liability to the victim.
New Mexico's uniform jury instruction (UJI 13-506) is based on the common law cause of action for scienter, and additionally sets forth the elements required for the defense of assumption of the risk:
Where a vicious dog is kept at the home of a married couple, knowledge of its vicious character by one spouse is notice to the other. (Mallard v. Zink (1979) 607 P. 2d 632, 633)
New Mexico also imposes liability upon a dog owner whose negligence caused injury to the victim. A negligence claim under 41-4-6 NMSA 1978 is appropriate where the dog owner lacks knowledge of the dog's vicious propensities and ineffectively controls the animal in a situation where it would reasonably be expected that injury could occur. (Smith v. Village of Ruidoso (1999) 994 P.2d 50.)
Negligence per se
Because New Mexico imposes liability on the basis of negligence, it can be assumed that liability would be imposed on the basis of negligence per se.
Landlord liability for bites by a tenant's dog
Ortiz v. Johnson (2013) 31645 (from the New Mexico Court of Appeals, not published but citable pursuant to Rule 12-405) strongly implies that a landlord can be held liable for dog bites by a tenant's dog if they know it has the tendency to bite people and the landlord breached a covenant to repair something like a gate or fence that facilitated the dog attack, or the accident occurred on a common area of the property controlled by the landlord such as a hallway.
Governmental liability based on negligence
Governmental entities in New Mexico cannot be held liable for scienter, but can be held liable for negligence. (Smith v. Village of Ruidoso (1999) 994 P.2d 50.) In Smith, a police dog which was living at the home of its handler ran out of his house and bit a schoolchild on the face. Her parents gave notice of a governmental tort claim, which under New Mexico Statutes section 41-4-6 has to be based on negligence. The court instructed the jury on common law strict liability, however, based on the state's uniform jury instruction (UJI 13-506). The New Mexico Court of Appeals reversed the judgment for the plaintiff because the jury should not have been given the strict liability instruction, but rather a negligence instruction. "[W]e conclude that a dog-bite victim may pursue negligence claims against a municipality where the victim's complaint and the evidence bring such a claim within Section 41-4-6."
Provocation as a defense
New Mexico has an unusual variation of the provocation defense, in that it requires proof of scienter on the part of the victim. Provocation coupled with scienter on the part of the victim will preclude the owner's liability. The owner of a dog is not liable to the person injured, if the injured person had knowledge of the propensities of the dog and wantonly excited it or voluntarily and unnecessarily put himself in the way of the dog.
Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953)
Torres v. Rosenbaum, 56 N.M. 663, 248 P.2d 662 (1952)
Aragon v. Brown, 93 N.M. 646, 603 P.2d 1103 (Ct. App. 1979)
Smith v. Village of Ruidoso, 128 N.M. 470, 994 P.2d 50 (Ct. App. 1999)
The killing of a dog is lawful under certain circumstances
The state allows, but does not require, peace officers to "kill any dog in the act of pursuing or wounding livestock or wounding and killing poultry or attacking humans." Section 77-1-9, subd. (B).
Laws relating to dog and livestock
The state protects livestock from dogs:
77-1-2. Dog killing or injuring livestock; damages; dog to be killed
If any dog shall kill or injure any livestock, the owner or keeper of such dog shall be liable for all damages that may be sustained thereby, to be recovered by the party so injured before any court having competent jurisdiction, and it shall be unlawful to keep such dog after it is known that the dog is liable to kill livestock, and it shall be the duty of the owner to kill, or have killed, the dog upon order of the court after a finding that the dog has killed or injured livestock, and provided further, that it shall be the right of any owner of livestock so killed or injured by the actions of any dog to kill the dog while it is upon property controlled by the owner of the livestock.