North Dakota permits a dog bite victim to recover compensation if he can prove that the dog owner knew his dog was vicious and was negligent in not preventing the accident. There is no strict liability for scienter itself when unaccompanied by dog owner negligence.
Sendelbach v. Grad (1976) 246 NW 2d 496 held that dog bite liability is based not on scienter under the common law but on a combination of scienter and negligence. In a case which involved a visitor who was bitten at the dog owner’s ranch, the Sendelbach court approved the following jury instruction: “If the dog’s traits or propensities are of a nature likely to cause injury the owner must exercise reasonable care to guard against and to prevent injuries or damages which are reasonably to be anticipated from the dangerous or vicious propensity of the dog.”
The Sendelbach decision reflects poor understanding of basic principles of dog bite law. The court literally rejected the entire body of common law pertaining to the cause of action for scienter because the justices missed the distinction between dogs that bite people and dogs that herd and/or bite other animals. All jurisdictions understand that biting people makes a dog vicious, but carrying out a duty to herd cattle or simply biting other animals is not necessarily vicious (but see A Propensity to Attack Other Dogs Means a Dog Is Dangerous to People in which Attorney Kenneth Phillips argues that a dog which attacks other people’s pets should be considered vicious). A scienter case must be based on a dog’s viciousness toward people, not other animals. The Sendelbach court, having missed this distinction, incorrectly rejected scienter as a ground for dog bite liability. The court’s solution was to conflate the scienter and negligence causes of action. In other words, the victim is required to prove the existence of a vicious propensity to bite, the dog owner’s knowledge of the vicious propensity, and the dog owner’s negligence in failing to prevent the bite injuries to the victim.
The Sendelbach court also based its decision on classifying the victim as a casual visitor to the dog owner’s ranch and therefore undeserving of protection against the dog. This fortunately was overruled by a later case, O’Leary v. Coenen (1977) 251 N.W.2d 746. In conclusion, the judge-made dog bite law of this state should be corrected either with a proper dog bite statute (see Model Dog Bite Laws) or a well-reasoned court interpretation of dog bite liability.