New Mexico Dog Bite Law

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.”

• Overview
• Litigation forms and other materials for attorneys
• If your case involves injury to a dog, see When a Dog Is Injured or Killed

Overview

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.

Scienter

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)

Negligence

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.

Important cases

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: