Virginia Dog Bite Law

Virginia is a “one bite” state as well as a “contributory negligence” state. Being negligent or breaking an animal control law will make a person liable for a dog bite, but someone partially responsible for causing the incident cannot recover any compensation.

Overview

Virginia holds a person legally liable for a dog bite if the person owns the dog and knew or should have known it previously bit or acted like it wanted to bite a person, or if the person’s negligence or violation of an animal control law caused the bite to happen. Unfortunately this is one of the states that does not have a strict liability dog bite statute.

One-Bite Liability

Virginia follows the so-called “one bite rule.” In Burton v. Walmsley, 9 Va. Cir. 309 (Richmond, 1967), court upheld a verdict for the dog bite victim because he was bit upon entering defendant’s home under circumstances similar to a bite suffered by another delivery person two years earlier. The courts have applied the “one bite rule” to behaviors other than biting, such as baring the teeth and snarling, or throwing itself against a window in an aggressive manner. Burton v. Walmsley, 9 Va. Cir. 309 (Richmond, 1967).

Negligence

Virginia permits suits based upon the negligence of a dog owner or keeper. In Butler v. Frieden, 208 Va. 352, 158 S.E.2d 121 (1967), an unleashed dog bit the victim, who sued the owner for violating the local leash law, and the court held that the violation was negligence per se. See also Wilkins v. Sibley, 205 Va. 171, 173, 135 S.E.2d 765, 766 (1964) [negligent securing of gate; defendant prevailed because of failure to prove causation]; Rice v. Turner, 191 Va. 601, 605-606, 62 S.E.2d 24, 26 (1950) [jury properly instructed that owner of cow had duty to prevent it from going beyond the boundaries of his land; defendant prevailed because no proof of negligence in fact]; see also Page v. Arnold, 227 Va. 74, 80, 314 S.E.2d 57, 61 (1984) [owner of pony “must exercise reasonable care” to confine it, but defendant prevailed because plaintiff’s case was based on “pure speculation” as to whether pony jumped fence).

Negligence per se

Virginia also adheres to the doctrine of negligence per se in cases where a dog inflicts injury upon a person, and the dog owner is in violation of a leash law or other ordinance designed to protect the public from personal injuries inflicted by dogs. Under Virginia law violation of a statute or ordinance constitutes negligence per se. See Gough v. Shaner, Adm’r, 197 Va. 572, 576 (1955); Standard Oil Co. v. Roberts, 130 Va. 532 (1921). The violation of an ordinance subjecting an owner to a fine if his dog “shall go at large upon any public street… of the city, unless such dog is accompanied by an attendant or held in leash by a responsible person” was held to establish the basis for a negligence per se claim in Butler v. Frieden, 208 Va. 352 (Va. 1967). In the Butler case, a four-year-old girl was attacked by and unattended and unleashed dog. The Supreme Court of Virginia noted that “[t]he purpose of the ordinance, as we read it, is to protect the public against hazards created by dogs running at large, including the most obvious hazard, dog bite.” (208 Va. at page 354.) The court therefore held that the violation of the ordinance was a breach of duty upon which the jury could find the defendant liable on the ground of negligence. (208 Va. at page 355.)

However, where a city ordinance required that a dog “be kept secured by a leash or lead, and under the control of the owner . . . or within the real property limits of its owners,” the defendant dog owners had an electronic containment system which was in working order, and their dog escaped through that electronic fence, it was held that this did not constitute negligence per se. Stout v. Bartholomew, 261 Va. 547, 544 S.E.2d 653 (Va. 2001).

It has been held that a dog is still “at large” even while on the property, if it is allowed to roam in an at large fashion. In Henrico County v. Cherry, the Henrico County Circuit Court ruled that “evidence that [a dog] was customarily or even occasionally attracted off of the property by passing persons or animals or that it just wandered off, would be sufficient to conclude that a dog was at large even though on its owner’s property.” 11 Va. Cir. 318, 1967 WL 94433 (1967) (emphasis added). The Court observed that for the owner to be found in violation of such an ordinance, “there must be evidence that he acquiesced in or tolerated the running at large of the dogs.” The Court elaborated:

This could be done by evidence that he actually knew the dogs were at large on the particular occasion and did not restrain them, but this is not shown here. It could be done by evidence that the dogs ran at large to such an extent that the owner’s knowledge of the fact could be implied and his failure to restrain the dogs would show his acquiescence in or toleration of the running. Id., 11 Va. Cir. 318 (holding that because owner did not know dogs were loose on occasion when they attacked there was “no evidence that these dogs had been off of the defendant’s property for one year prior to the attack,” owner could not be held liable for allowing dogs to be “at large”); see also Stout v. Bartholomew, 261 Va. 547, 544 S.E.2d 653 (2001) (defendants had not violated an Arlington County Code provision that prohibited permitting a dog to run “at large” from the property, where they relied on invisible fence containment system that failed and allowed dog to escape, causing motorcycle crash).

Owners have a duty to know

An “owner” is “any person who: (i) has a right of property in an animal; (ii) keeps or harbors an animal; (iii) has an animal in his care; or (iv) acts as a custodian of an animal.” Va. Code § 3.2-6500.

Virginia dog owners are required to know their dog’s propensities and prevent foreseeable harm. Virginia Model Jury Instructions, Instruction 29.020 (“Dog Owner’s Duty: No Leash Ordinance”), sets forth the duty of care in a dog bite case based on general negligence:

If the owner of a dog knows, or should know, that his dog might cause injury, he has a duty to use ordinary care to prevent injury to others. If an owner fails to perform this duty, then he is negligent.

Exactly what the dog owner needs to know is set forth in VMJ Instruction No. 29.010 (“Owner Charged With Knowledge of Propensities of the Breed”):

The owner of a (name of particular class or species of animal) must take notice of its general, natural inclinations or characteristics and of the inclinations or characteristics, if any, peculiar to the animal in this case that he knows about or should have known about. If any of those inclinations or characteristics are of a kind likely to cause injury, the owner has a duty to use ordinary care to prevent any reasonably foreseeable injury. If an owner fails to perform this duty, then he is negligent.

In Burton v. Walmsley, 9 Va. Cir. 309, 1967 WL 94415 (Va. Cir. Ct. 1967) (City of Richmond), the City of Richmond Circuit Court relied on Restatement Section 290: “For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know … the qualities and habits of human beings and animals ….” Illustration (g) to that section elaborates:

A reasonable man is required to have such knowledge of the habits of animals as is customary in his community. Thus, he should know that certain objects are likely to frighten horses and that frightened horses are likely to run away. He should know that cattle, sheep, and horses are likely to get into all kinds of danger unless guarded by a human being, that bulls and stallions are prone to attack human beings and that even a gentle bitch, nursing her pups, is likely to bite if disturbed by strangers.

The foregoing general principle of negligence is applied more specifically to animals in Restatement (2nd) of Torts, § 518:

Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,

(a) he intentionally causes the animal to do the harm, or

(b) he is negligent in failing to prevent the harm. (Restatement (Second) of Torts, § 518, at p. 30.)

Comment (g) provides that, “In determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics.” Comment (h) states, “One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.”

The Court in Burton stated that negligence need not be based on viciousness, but could be based on other habits or factors that indicate that the dog poses a risk of harm, including the dog’s type or breed:

It would appear that the dog need not be actually of a vicious temperament to satisfy this qualification if his habits are such as to raise in an ordinarily prudent person the apprehension that the dog might injure persons other than his master. An extremely nervous and high-strung animal might pose as much of a threat to one coming on the premises of its owner as would a dog which was of a vicious nature. One indicia suggesting the possibility of a vicious nature is often the particular type dog involved. Burton, 9 Va. Cir. 309.

Owners must consider risks

Virginia also requires that the owner of a domestic animal to consider the risks that it might pose to a particular person. In Bradshaw v. Minter, 206 Va. 450, 143 S.E.2d 827, 828 (1965), the plaintiff was a social guest of “the defendant host” who was injured while riding the defendant’s horse. The evidence showed that the defendant had been riding the horse for fifteen months “without incident,” and it was “undisputed that the horse was gentle and not mean or vicious.” 206 Va. at p. 452. But the defendant admitted the horse was “spirited” and “liked to run.” Reversing a judgment for the defendant, the Court ruled that even though the defendant owed no duties of inspection or affirmative care to make the premises safe, the defendant’s affirmative act of inviting the guest to ride the horse still created a duty of reasonable care. The Court reasoned that while “there is no evidence that this horse was vicious, there is ample evidence to warrant the finding that it was unsafe or untrustworthy for an inexperienced rider and that the defendant knew or should have known this.” 206 Va. at p. 455. Thus, it was a jury question whether the defendant was negligent for allowing the ride without “first ascertaining whether she was an experienced and capable rider, without warning her of the characteristics and propensities of the animal, and the dangers incident to the situation.” Id. In other words, the Court looked at the horse owner’s duty in broad fashion that imposed a duty to know the animal and to anticipate the particular risks it posed to his guest.

Landlord liability

Virginia holds landowners responsible for dangerous conditions which can include vicious dogs. In the case of invitees, landowners have the distinct duties to inspect the property for hazardous conditions and to protect invitees from unsafe conditions. Virginia courts have applied landowners’ duties of care as to animals as potentially hazardous conditions of the property. In Hoelman v. Lipman, the Western District applied these duties to lessees whose dog attacked a visiting housekeeper. The court ruled that landowners “are chargeable with constructive as well as actual knowledge of the condition of the property,” and are “subject to liability” for an invitee’s injury that results from “an unsafe condition (one which was not open and obvious to the invitee) if the inviter knew it existed, or by the exercise of reasonable care should have discovered its existence, and failed to remedy the condition or otherwise to protect the invitee against the danger.” Hoelman v. Lipman, 3:12-CV-00042, 2013 WL 3788613 (W.D. Va. 2013) (quoting Appalachian Power Co. v. Sanders, 232 Va. 189, 194, 349 S.E.2d 101, 105 (1986)). The Western District further observed that in Virginia, “[c]ases dealing specifically with domestic animals have held that an owner must exercise ordinary care to keep the animal from injuring others,” and “under Virginia law, issues of reasonable care and negligence are fact questions best resolved by the jury.” Hoelman, supra.

A landowner in Virginia has constructive notice of the unsafe condition if it “had existed for such a length of time as to make it the owner’s duty in the exercise of ordinary care to have discovered it.” Franconia Associates v. Clark, 250 Va. 444, 448, 463 S.E.2d 670, 673, 1995 WL 643233 (1995). In addition, landowners that take affirmative actions that create the condition or the genesis of its hazardous nature are charged with the notice of that condition. In such cases, a business owner will be “charged with constructive knowledge of the risk because it ‘had a duty to exercise reasonable care to avoid the genesis of the danger.’” Austin v. Shoney’s, Inc., 254 Va. 134, 139, 486 S.E.2d 285, 288, 1997 WL 327374 (1997) (jury could have accepted theory that grease-like film was the result of improper cleaning methods by Shoney’s, such that “th hazardous condition was affirmatively created by the property owner”).

Emotional distress damages

It is proper for a physically injured plaintiff to recover damages for emotional distress. Mental anguish may be inferred from bodily injury and that it is not necessary to prove it with specificity. Norfolk & W. Ry. Co. v. Marpole, 97 Va. 594, 599-600 (1899). Mental anguish, when fairly inferred from injuries sustained, is an element of damages. Bruce v. Madden, 208 Va. 636, 639-40 (1968). However, no compensation can be awarded if the distress arises from the injury to or death of a dog. Kondaurov v. Kerdasha, 271 Va. 646 (Va. 2006).

Virginia must change its dog bite laws

When it comes to the civil dog bite laws, there is a certain, obvious illogic in Virginia. Except for negligence cases as set forth above, this state is adhering to ancient English courts that ruled that “every dog gets one free bite.” This “one bite rule” was announced centuries ago, in pastoral Britain, when dogs, hogs, mules and sheep wandered aimlessly through towns, as a normal part of life. In those long-gone days, the judges of Charles Dickens’ time announced that the owner of a domestic animal would not be held liable unless and until it bit someone first. There was no need for people to be vigilent about their animals because the law did not require people to take any level of responsibility until a tragedy first occured.

Those days, however, are long gone. In modern America, our ideas about personal responsibility are far different. We believe that every one of us must be responsible for the harm that we might cause, and that might be caused by our things, our employees and our children, under our “watch.”

Virginia dog bite laws tell the people that it is okay for their dog to bite someone, once. That they are not responsible for it. That there is no consequence when it happens. That they can look the other way. Shrug it off. Forget about it.

That is because Virginia is following an ancient English rule of law that is out of touch with American ideals and has been rejected by the majority of American states. In most states and the District of Columbia, there is a law that either wholly or partially supplants the “one bite rule,” imposing strict liability on dog owners for dog bites, including the first bite. There is no “free bite” in a majority of American states and the DC. (See Legal Rights of a Dog Bite Victim, which contains links to the dog bite statutes throughout the USA.)

Shouldn’t every bite have consequences? Every victim is required to suffer, every medical bill must be paid, every ambulance company sends out its invoice, every pharmacy has a cash register. If dog owners know that there will be consequences for every bite, then they will be less inclined to permit their dogs to roam, and there will be fewer injuries.

Making matters worse for all kinds of accident victims, Virginia also follows another ancient and inhumane doctrine, called the “contributory negligence” rule. It says that a person who is even one percent responsible for an accident has no legal right whatsoever to recover compensation for medical bills or anything else. There are only 4 states in the USA that follow this terrible, 18th century rule.

The one bite rule needs to be repealed in Virginia. It needs to be replaced with a law that makes every dog owner, keeper or harborer legally liable for any and all injuries caused by his or her dog, other than injuries that result from provocation or are inflicted upon a trespasser. The new dog bite statute also should explicitly negate contributory negligence as a defense.

Additional Reading

A great outline of Virginia dog bite law: Donald R. Morin, Vicious or Merely Dangerous: Preparing and Trying the Dog Bite Case, accessed 3/18/2020.