A dog bite victim in the District of Columbia can recover compensation under the doctrines of negligence, scienter and intentional tort. This is a mixed jurisdiction. There is no dog bite statute but a victim is not required to prove scienter if a dog bites him while the dog is at large and if the dog is at large because of its owner's negligence.
- The statutes
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
The District of Columbia has two statutes that, read together, eliminate the requirement of scienter in one specific set of circumstances: where the dog that bit the victim was at large because of its owner's negligence. The two statutes are section 8-1808 and section 8-1812, set forth below. Other than that, the victim has to prove negligence, scienter or intentional tort. This is a contributory negligence state, so a victim who is negligent even insignificantly is barred from recovering compensation for the bite.
Section 8-1801(a)(1)(A) defines "at large" as follows: "The term "animal at large" means any animal found off the premises of its owner and neither leashed nor otherwise under the immediate control of a person capable of physically restraining it."
Section 8-1808 states "No owner of an animal shall allow the animal to go at large."
Section 8-1812 provides, "If a dog injures a person while at large, lack of knowledge of the dog's vicious propensity standing alone shall not absolve the owner from a finding of negligence."
It has been held that if a dog bites a victim while the dog is at large, the violation of section 8-1808 is not necessarily negligence per se, but only evidence of negligence. Chadbourne v. Kappaz, 779 A. 2d 293 (DC Court of Appeals 2001). The Chadbourne court approved the trial court's instruction to the jury, which was that an owner "allows" an animal to "go at large" if he "(a) intentionally permits the animal to go at large, or (b) fails to exercise due care to keep that animal from going at large. In determining the care required, you may consider the propensities of the animal known to the owner." In other words, "allow" means to intentionally allow or to negligently allow; it does not mean "suffer" in the sense of "suffering" the dog to go at large.
These statutes therefore create a single exception to the one bite rule: the victim is not required to prove scienter if a dog bites him while the dog is at large and if the dog is at large because of its owner's negligence.
Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person was negligent. For example, letting a stray dog into a day care center is negligence. In this jurisdiction, negligence that results in a dog attack will make the negligent party legally liable to compensate the victim, provided that the victim is blameless (see Contributory Negligence, below). For more information, see Legal Rights of Dog Bite Victims in the USA.
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 if (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. For more information, see The One Bite Rule.
The District of Columbia is unkind to accident victims in general, and dog bite victims are no exception. DC adheres to the ancient and inhumane doctrine of contributory negligence. This doctrine prevents a victim from receiving any compensation if his or her conduct was even an insignificant cause of the accident. Other states and countries have adopted the doctrine of comparative fault, which "compares" the legal responsibility of the victim and the other parties, and provides compensation to the victim in direct proportion to the comparative responsibility of the parties (i.e., if the dog owner is 90% responsible and the victim is only 10% responsible, then the victim's compensation is reduced by his or her 10% of fault). The time has come for DC to get in step with the rest of the country and replace contributory negligence with comparative fault.
A dog bite victim in Tennessee can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort. The dog bite statute has an unusual limitation: it does not necessarily apply to injuries occuring on the dog owner's property, although it can possibly apply there. The law was written by Attorney Kenneth M. Phillips, the author of Dog Bite Law, except for the "residential exclusion" which was an amendment to his draft.
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
Dog Bite Statute
In 2007 Tennessee established strict liability for canine-inflicted injuries (bites and other injuries) under specific circumstances. Attorney Kenneth M. Phillips, the author of Dog Bite Law (this website), wrote the original bill on which the law was based, and testified about dogs and the law before the Senate Judiciary Committee. See the video of him testifying about the need to abandon the "one bite rule," below.
The Dianna Acklen Act of 2007, T.C.A. sec. 44-8-413, provides statutory liability for dog bites under specific circumstances. Subdivision (a) creates a two-part duty: a dog must be under reasonable control and not running at large. The duty is violated when a dog is not under reasonable control even if it is not running at large (for example, a dog running loose on the owner's unfenced front lawn). "A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another." However, there are exceptions to liability created by this statute:
- There is no liability for a dog that is doing police or military work or protecting someone from being attacked, or is securely confined in a kennel or something similar.
- There is no liability if the victim provoked the dog.
- There is no liability for an attack that occurs on residential, farm or other noncommercial property owned, rented or leased by the dog owner, or occupied by the dog owner with permission, unless the victim proves scienter (see below). This last exception is referred to as the "residential exclusion."
The residential exclusion is a significant shortcoming of the Tennessee statute. It requires a victim to prove scienter (i.e., that the dog's owner knew or should have known of the dog's "dangerous propensities") if the injury-producing incident happened on residential, farm or other noncommercial property that the dog owner owned, leased, rented or was upon by virtue of the property owner's invitation. To learn more about the scienter requirement, see Scienter, Common Law Strict Liability (below), and also The One Bite Rule.
Tennessee is the only USA state that has a "residential exclusion" in its dog liability statute. The exclusion was not in the bill which was drafted by Attorney Phillips. It is a large loophole in the statute because over 50 percent of bites occur on the dog owner's property. (See Insurance Information Institute, Dog Bite Liability, accessed 8/4/08.) This means that the residential exclusion leaves over 50% of otherwise-qualified victims in Tennessee without compensation. Guests in a dog owner's home are not covered by his insurance, while strangers he encounters on the street are fully covered. For example, a dog owner's 6-year-old neice, bitten in the face, would not receive the necessary money for cosmetic surgery in years to come, while an unknown person bitten outside the house would. This is the type of legal loophole that the insurance industry puts into laws because no thinking, honest or compassionate person would do so.
If you are not a lawyer, but are a dog bite victim or a dog owner whose dog bit a person, the complexity of this law requires that you consult an attorney before talking to the other party's insurance adjuster.
Scienter, Common Law Strict Liability, and the One Bite Rule
A dog owner or the keeper of a dog may be held civilly liable for the damages caused by his dog under the "scienter" cause of action, also known as "common law strict liability" and the "one bite rule." In Fletcher v. Richardson, 603 S.W.2d 734, 735 (Tenn. 1980), the court stated:
"The owner or keeper of the dog is not answerable for injuries done by it when in a place it had a right to be, unless the dog was in fact vicious or otherwise dangerous, the owner or keeper knew, or under the circumstances should have known, of the dangerous disposition of the animal, and the injuries resulted from the known vicious or dangerous propensity of the animal. The basic key to recovery of damages for injuries caused by a dog is the knowledge of the owner or keeper that the animal is vicious or has mischievous propensities."
Plaintiffs suing for injuries or death caused by a dog bite must prove three elements. "First, they must prove that the defendant owned the dog. Second, they must prove that the defendant's dog caused the injuries. Third, they must prove that the defendants knew or should have known about the dog's dangerous propensities." Eden v. Johnson, No. 01A01-9603-CV-00141, 1996 WL 474428, at *2 (Tenn. Ct. App., Aug. 21, 1996) (citing Thompson v. Thompson, 749 S.W.2d 468, 470 (Tenn. Ct. App. 1988)); See Fletcher v. Richardson, 603 S.W.2d 734, 735 (Tenn. 1980) ("the basic key to recovery of damages for injuries caused by a dog is the knowledge of the owner or keeper that the animal is vicious or has mischievous propensities").
The state allows dog bite victims to recover damages caused by negligent dog owners. There must be proof of negligence. This can be difficult to prove, especially where the dog bite victim is a child and there were no witnesses, or where a person is killed and there are no witnesses.
The Tennessee formula for proving negligence is as follows :
The owner or keeper of domestic animals is liable for injuries inflicted by them only where he has been negligent, the animals were wrongfully in the place where they inflicted the injuries, or the injuries are the result of known vicious tendencies or propensities. A person has a right to own or keep domestic animals of any kind provided they are so restrained as to not expose others engaged in their ordinary or lawful pursuits to danger. The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and in so far as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them. McAbee v. Daniel, 445 S.W.2d 917, 923 (Tenn. App. 1968).
Negligence per se
The violation of a statute or regulation is negligence per se as to members of the class that the statute or regulation is intended to protect. Alex v. Armstrong, 215 Tenn. 276, 385 S.W.2d 110 (1964); Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. App. 1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn. App. 1978). See Further Research (below) for a link that will enable you to research local laws on which this cause of action is based.
Langford v. Darden, No. M2004-00158-COA-R3-CV (Tenn.App. 02/16/2005) was a dog bite case against an absent landlord. The plaintiff argued that owing to the pervasive publicity about the viciousness of the tenants' dog, the landlord had constructive notice of its propensity to violence and should therefore be held liable. Summary judgment was granted to the landlord. The court of appeals affirmed. It stated that since Quarles was neither the owner nor the harborer of the dog, he could be held liable for the acts of the dog only upon proof that he had knowledge of the propensity of the dog to violence, and that he retained sufficient control over the leased premises to afford an opportunity for the landlord to require the tenant to remove the dog.
The state does not have a law that prohibits chaining. It is actually encouraged by some cities in Tennessee. For example, City of Memphis Ordinance § 5-60 provides:
Dog owners shall, at all times, keep their animals on a leash or other suitable restraint or confined by a fence on their property or the private property of another, with the permission of the owner of that property so as to prevent the animal from being at large, biting or harassing any person engaged in a lawful act, interfering with the use of public property or with the use of another person's private property, or being in violation of any other section of this Code. No animal shall be allowed to run at large even on the property of the owner of such animal, unless confined by a fence or other suitable restraint.
State statutes and related materials can be found at the Tennessee section of Laws.com. City and county laws can be found at MTAS Municipal Codes. Always read both the city and county laws, not one or the other, because both can apply to the same case.
New York is a "mixed" state, meaning that it has a dog bite statute that mixes the one-bite rule with a limited degree of strict liability. The statute makes the owner or keeper of a previously adjudicated "dangerous dog" strictly liable only for the victim's medical and veterinary costs. For other damages, New York requires a victim to prove that the dog had the dangerous tendency to bite people, and that the dog owner knew it. New York does not permit victims to recover compensation on the ground of negligence, at least in most circumstances.
- If you are an attorney who is researching the law in this state, read this page and also click here.
- If your case involves injury to a dog, see When a Dog Is Injured or Killed.
Strict liability for medical costs if dog is "dangerous"
Agriculture & Markets Law, Section 121, makes the "owner or lawful custodian" of a "dangerous dog" "strictly liable" for medical costs resulting from "injury" caused by such dog to a person, "companion animal," farm animal or "domestic animal." Section 121 contains a number of definitions:
- The "owner" is a person who harbors or keeps the dog. (Sec. 108, subd. 15.)
- A "dangerous dog" is one that "without justification" either (a) attacks and injures or kills a person, "companion animal," farm animal or "domestic animal" or (b) "behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death" to one or more of the foregoing. (Sec. 108, subd. 24(a).) There is an exception for dogs assisting the police. (Sec. 108, subd. 24(b).) The conduct of the victim, either on the day of the attack or at a much earlier time, also can exempt a dog from "dangerous" status. (Sec. 121, subd. 4.)
In addition to liability for medical costs, the owner of a dangerous dog may be required to pay a fine if his negligence results in a dog bite to a person, service dog, guide dog or hearing dog. The amount of the fine depends on whether the injury was to a person or animal, the seriousness of the injury, and whether the dog previously was adjudicated to be a dangerous dog. Agriculture & Markets Law, Section 121, subdivisions 6, 7 and 8.)
If a dog owner negligently permits his dog to bite a person, the dog previously was declared to be dangerous, and the injury is a "serious injury," the dog owner can be convicted of a misdemeanor ($1000 file and 90 days in jail). Agriculture & Markets Law, Section 121, subdivision 8.) A "serious injury" is one that causes death or presents the risk of death, or causes "serious or protracted" disfigurement, "protracted impairment of health or protracted loss or impairment of the function of any bodily organ." Agriculture & Markets Law, Section 108, subdivision 29.)
If a dog previously declared dangerous escapes or otherwise gets to a person and kills him, the owner can be convicted of a class A misdemeanor, in addition to other penalties and civil liability. Agriculture & Markets Law, Section 121, subdivision 9.)
New York is a "one bite state " for damages other than medical costs
New York courts have long recognized a cause of action that imposes strict liability on the owner for injuries inflicted by his dog if the victim can establish that the dog is vicious and that the owner knew or should have known about such vicious propensities. The state's highest court ruled "that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation." Bard v. Jahnke, 6 NY3d 592 (N.Y. 2006), citation omitted.
Evidence of vicious propensity
The state's highest court has ruled that a jury is entitled to consider any evidence of a dangerous propensity, and that a prior bite is only one such type of evidence:
[W]hile knowledge of vicious propensities "may of course be established by proof of prior acts of a similar kind of which the owner had notice," a triable issue of fact as to whether the owner knew or should have known that its animal harbored vicious propensities may be raised by proof of something less (Collier, 1 NY3d at 446). In Collier, a case in which a dog bit a child, we gave the example of evidence that a dog had, for example, "been known to growl, snap or bare its teeth," or that "the owner chose to restrain the dog, and the manner in which the dog was restrained" (id. at 447). "In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities albeit only when such proclivity results in the injury giving rise to the lawsuit" (id.). [Bard v. Jahnke, 6 NY3d 592 (N.Y. 2006).]
Presence of "Beware of Dog" signs standing alone are not enough to imply that dog owner knew of his dog's vicious propensities. Altmann vs Emigrant Savings Bank, 249 AD2d 67, 68 (First Dept, 1998); Frantz vs McGonagle, 242 AD2d 888 (Fourth Dept, 1997); Arcara vs Whytas, 219 AD2d 871, 872 (Fourth Dept, 1995).
A defendant who establishes by undisputed proof that his dog had never bitten anyone before and had never bared its teeth or growled at anyone before is entitled to summary judgment. Arcara vs Whytas, 219 AD2d 871, 872 (Fourth Dept, 1995).
The fact that a dog was chained and strained on its chain and barked when people approached was held insufficient to create an inference that the dog was vicious. Gill vs Welch, 136 AD2d 940 (Fourth Dept, 1988).
In determining whether an animal has vicious propensities, a jury may consider the nature and the result of the attack on the victim. Lynch vs Nacewicz, 126 AD2d 708, 709 (Second Dept, 1987).
Evidence of the severity of injuries by prior victims of same dog is admissible as probative of the dog's vicious propensities and the owner's knowledge of same. Lynch vs Nacewicz, 126 AD2d 708, 709 (Second Dept, 1987).
Negligence not recognized as ground
New York cases refer to negligence as a ground but do not permit recovery for general or common-law negligence unless the defendant knew or should have known that the dog in question had a vicious or dangerous temperament -- in other words, the victim has to prove scienter. Bard v. Jahnke, 6 NY3d 592 (N.Y. 2006), citing Collier v Zambito, 1 NY3d 444 (2004). The Bard court stated emphatically, "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier." Id. For the definition of "scienter," see The One Bite Rule at dogbitelaw.com. For a great summary of the relevant New York cases, see Richards, Karen M., Court of Appeals Takes the Bull by Its Horns: Liability for Roaming Cattle and Other Domestic Animals (2014).
Negligence per se
New York has a unique restriction on the doctrine of negligence per se. If a person violates a state law, the violation constitutes negligence per se, and equals negligence without more proof. If a person violates a city or county law, however, the violation constitutes evidence of negligence but not negligence per se. Kevin Elliott v. City of New York, 95 N.Y. 2d 730; 747 N.W.2d 760 (2001) ("As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability. [Citations omitted.] By contrast, violation of a municipal ordinance constitutes only evidence of negligence.")
The Court of Appeals has specifically held that there is no cause of action for negligence when a dog bites a person while in violation of a leash law. (Petrone v. Fernandez, 12 N.Y.3d 546, 550, 910 N.E.2d 993, 996 (2009).)
To hold a landlord liable for a bite injury caused by a tenant's dog, the victim must prove that at the time of the initial leasing the landlord had actual knowledge of (1) the presence of the dog and (2) the dog's vicious propensity to bite humans. Strunk v. Zoltanski, 62 N.Y.2d 572, 468 N.E.2d 13, 479 N.Y.S.2d 175 (1984). Landlords can even be held liable for off premises attacks under the general common-law rule where the landlord has the right to remove the animal by evicting the tenant. Strunk v. Zoltanski, supra, 62 N.Y.2d at p. 576; see also Cronin v. Chrosniak, 145 App. Div. 2d 905, 906–907, 536 N.Y.S.2d 287 (1988).
If a defendant moves for summary judgment and introduces admissible evidence that indicates that defendant had no knowledge of the dog's vicious propensities, plaintiff must submit rebuttal evidence or risk having his complaint dismissed. Luts vs Weeks, ___AD2d___(Second Dept, 1/31/2000); Althoff vs Lefebvre, 240 AD2d 604 (Second Dept, 1997); Smith vs Farner, 229 AD2d 1017, 1018 (Fourth Dept, 1996); Arcara vs Whytas, 219 AD2d 871, 872 (Fourth Dept, 1995); Fox vs Martin, 174 AD2d 875, 876 (Third Dept, 1991); Gill vs Welch, 136 AD2d 940 (Fourth Dept, 1988).
If a defendant fails to submit admissible evidence his summary judgment motion must be denied. Pringle vs New York City Housing Authority, ___AD2d____; 689 NYS2d 181, 182(Second Dept, 1999).
If there is conflicting evidence regarding the dog's vicious propensities, that issue must be given to the jury to decide. Frantz vs McGonagle, 242 AD2d 888 (Fourth Dept, 1997).
Proof that dog was bred to be aggressive and was high strung and territorial not enough to raise issue of fact re: dog's vicious propensities or owner's knowledge of same. Wilson vs Whiteman, 237 AD2d 814, 815 (Third Dept, 1997).
Out-of-pocket, lost wages and punitive damages were all recoverable in Nardi vs Gonzalez, 165 Misc2d 336, 339 (1995)(note that although this case involved a dog injuring another dog, the court stated that such damages could be recoverable in an attack on a human).
Damages of $310,000.00 were held excessive where evidence indicated that the victim was able to perform most of her household duties and work full time, and was coping with phobia of dogs by seeking counseling. Fontecchio vs Esposito, 108 AD2d 780, 781-782 (Second Dept, 1985).
An attack on another dog or companion animal
An attack on another dog or companion animal can result in serious consequences for the dog owner or keeper as well as the attacking dog itself. A judge or magistrate can determine that the dog is dangerous and impose penalies on the owner and conditions of confinement of the dog. The dog even can be euthanized if it previously was declared dangerous and this time it inflicted serious injuries or death on another dog. For more information, see Agriculture & Markets Law, Section 121.
Change the dog bite law of New York
New York needs to move into the 20th Century (it was in that century that most of the strict liability dog bite laws were enacted). Although it is thought of as a liberal state, New York's dog bite laws are almost exactly the same ones that were created in the 17th century by British judges for the quaint English countryside. The highest court of New York has even ruled that there is no such thing as dog owner negligence. Reliance on the one bite rule is completely wrong, in modern New York or any other American state, because when the one bite rule was established there were no pit bulls, the practice of dog fighting had not been invented, there was no insurance industry to spread the risks, and there was no USA with its focus on fairness and human rights. All those things have changed, and that is why dogs have lost their right to bite in most states.
New York needs a strict liability law like that of nearby New Hampshire. The state of New Hampshire has a law pertaining to canine-inflicted injuries that covers any cause of damage by a dog, and applies to injuries to not only humans but also any form of property, including another dog or cat. (The text of the statute is set forth at the New Hampshire section of dogbitelaw.com.) Such a law is worth fighting for.
For more information
The following websites have additional information about New York State dog bite laws:
- The text of the dangerous dog law, provided by the State of New York Department of Agriculture and Markets. (This is a .pdf file that will be downloaded to your computer from the state website. You will need Adobe Reader to view it.)
A dog bite victim in Hawaii can recover compensation under the doctrines of negligence, negligence per se, scienter and intentional tort. The state dog bite statute merely clarifies that negligence does not require scienter so, despite the statute, this is a "one bite state." Individual counties and cities are not permitted to have ordinances creating strict liability.
- Hawaii dog bite statute
- Negligence and negligence per se for violating a law
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
Hawaii is a one bite state despite having what appears to be a strict liability statute. To recover for a dog bite in this state, the victim must prove scienter, negligence or intentional injury, as in any other one bite state. For more information about "scienter," and the other causes of action available in one bite states, see The One Bite Rule and Legal Rights of Dog Bite Victims in the USA.
The dog bite statute of this state is HRS section 663-9:
Section 663-9 (Liability of animal owners)
(a) The owner or harborer of an animal, if the animal proximately causes either personal or property damage to any person, shall be liable in damages to the person injured regardless of the animal owner's or harborer's lack of scienter of the vicious or dangerous propensities of the animal.
(b) The owner or harborer of an animal which is known by its species or nature to be dangerous, wild, or vicious, if the animal proximately causes either personal or property damage to any person, shall be absolutely liable for such damage. [L 1980, c 218, §2]
Section 663-9.1 (Exception of animal owners to civil liability)
(a) As used in this section:
(1) "Premises" includes any building or portion thereof or any real property owned, leased, or occupied by the owner or harborer of an animal.
(2) "Enter or remain unlawfully" means to be in or upon premises when the person is not licensed, invited, or otherwise privileged to be upon the premises. A person is not licensed or privileged to enter or remain in or upon a premises if a warning or warnings have been posted reasonably adequate to warn other persons that an animal is present on the premises. A person who, regardless of the person's intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to the person by the owner of the premises or some other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to the person by the owner of the land or some other authorized person, or unless notice is given by posting in a conspicuous manner.
(3) The definitions of "intentionally" and "knowingly" as contained in sections 702-206(1) and 702-206(2) shall apply.
(b) Notwithstanding sections 663-1 and 663-9, any owner or harborer of an animal shall not be liable for any civil damages resulting from actions of the animal occurring in or upon the premises of the owner or harborer where the person suffering either personal or property damage as a proximate result of the actions of the animal is found by the trier of fact intentionally or knowingly to have entered or remained in or upon such premises unlawfully.
(c) Notwithstanding sections 663-1 and 663-9, any owner or harborer of an animal shall not be liable for any civil damages resulting from actions of the animal where the trier of fact finds that:
(1) The animal caused such damage as a proximate result of being teased, tormented, or otherwise abused without the negligence, direction, or involvement of the owner or harborer; or
(2) The use of the animal to cause damage to person or property was justified under chapter 703. [L 1980, c 218, §3; gen ch 1985]
In Hubbell v Iseke, 727 P2d 1131, 6 Haw. App. 485 (Haw.App. 1986), the Hawaii Court of Appeals held that section 663-9 does not establish strict liability for canine-inflicted injuries, but merely clarifies that a victim who bases his case on negligence does not have to prove scienter (i.e., knowledge of the dangerousness or viciousness of a dog). Section 663-9 has been interpreted to mean that one can prove negligence without having to prove scienter. In other words, the statute clarifies that knowledge of the dog's viciousness does not have to be proved as long as the dog owner's conduct is shown to be unreasonable.
If the dog's owner or harborer was aware that the dog was vicious, the dog bite victim in Hawaii can base his claim on the doctrine of scienter. For more information about scienter, see The One Bite Rule.
This state also permits a dog bite victim to recover compensation on the ground of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person is negligent. For example, letting a stray dog into a day care center is negligence. See Negligence.
"Negligence has often been said to be the failure to exercise due care under the circumstances. Due care in turn has been defined as that care which an ordinarily prudent person would have exercised under the same circumstances. So that in the last analysis what is negligence depends upon the facts and circumstances of each individual case, tested by the hypothetical ordinarily prudent man." Young v. Hon. C. D. Co. (Haw. 1936) 34 Haw. 426, 435.)
As it was put in one case, "what is reasonable care on the part of the defendant is 'what a reasonable and prudent person would . . . have done under [the] circumstances.'" Wong v. City & County, 66 Haw. 389, 394-95, 665 P.2d 157, 161 (1983) (quoting Martin v. Wilson, 23 Haw. 74, 88 (1915)).
In Tseu ex rel. Hobbs v. Jeyte, 88 Hawai`i 85, 91 (1998), the court said the elements of a cause of action founded on negligence are:
1. A duty or obligation, recognized by the law, requiring the defendant to conform to a certain standard of conduct, for the protection of others against unreasonable risks;
2. A failure on the defendant's part to conform to the standard required: a breach of the duty;
3. A reasonably close causal connection between the conduct and the resulting injury; and,
4. Actual loss or damage resulting to the interests of another.
The violation of an animal control law in Hawaii can result in liability on the part of the violator, whether or not he owns the dog. States, counties and cities often have laws requiring dogs to be on leash, or prohibiting them from being at large or from trespassing. The violation is considered to be evidence of negligence. "T]he neglect of duty imposed by the ordinance is evidence of negligence sufficient to require the question of negligence to be submitted to the jury." Young v. Hon. C. D. Co. (Haw. 1936) 34 Haw. 426, 450.)
For example, Kauai has the following leash law:
Sec. 22-2.2 Definitions.
When used in this Article, the following words and phrases shall have the meaning given in this Section unless it shall be apparent from the context that a different meaning is intended:
“At large” means:
(1) On the premises of a person other than the owner of the dog without consent of an occupant of such premises; or
(2) On a public street, on public or private school grounds, or in any other public place, except when under the control of the owner by leash, cord, chain or other similar means of physical restraint, provided that such leash, cord, chain or other means is not more than eight (8) feet in length.
“Owner” means every person owning, harboring or keeping a dog or having custody thereof.
“Stray” or “stray dog” means any dog at large.
Sec. 22-2.3 Strays Prohibited.
It shall be unlawful for the owner of any dog, whether the dog is licensed or not, to permit or cause the dog to become a stray.
If a dog owner violated the foregoing leash law or any other leash law on the Hawaiian islands, and if a person were bitten by the dog, then the dog owner would be liable for the payment of full compensation to the victim. Note however that Hawaii has not adopted the rule of negligence per se. Violations of law are evidence of negligence, not negligence per se.
A dog bite victim in Georgia can recover compensation under the doctrines of scienter and intentional tort; additionally, the state's dog bite statute provides compensation if the dog was at large because of its owner's negligence. This state has one of the most complicated mixed dog bite statutes in the USA, and its negligence doctrine is in a state of change, so an attorney should be consulted in any serious case.
- Overview of Georgia dog bite law
- The Georgia dog bite statute
- Negligence in Georgia
- Proving liability where the dog did not previously bite a person
- Proving liability where the dog had the dangerous tendency to bite
- Proving careless management or allowing the dog to go at liberty
- Sample ordinances that can trigger the dog bite statute
- Georgia Landlord liability for dog bites
- The dangerous dog law in Georgia
- If you are an attorney who is researching the law in this state, click here.
- If your case involves injury to a dog, see When a Dog Is Injured or Killed.
A dog bite victim in North Carolina can recover compensation under the limited dog bite statutes and the doctrines of negligence, negligence per se, scienter (the one bite rule), and intentional tort. The dog bite statutes apply only to dogs that (a) are over six months of age and running at large during the night, (b) previously killed or injured people or (c) previously were officially declared to be dangerous or potentially dangerous. North Carolina is a contributory negligence state, making it difficult for some victims to recover compensation.
The owner of a dog in North Carolina will be held strictly liable for canine-inflicted injuries to a human being or to "chattels" (the legal term for "property") if he intentionally, knowingly, and willfully violates the state's prohibition against dogs running at large per section 67-12 of North Carolina General Statutes. The prohibition applies only to a dog more than 6 months old, running at large in the night, unaccompanied by the owner or "some member of the owner's family, or some other person."
If section 67-12 does not apply, there may be strict liability under section 67-4.4 if the injuries were inflicted by a "dangerous dog" as defined by section 67-4.1. A "dangerous dog" is one that (a) is over six months of age and running at large during the night, (b) previously killed or injured people or (c) previously was officially declared to be dangerous or potentially dangerous.
If the requirements for statutory liability cannot be met, there are other grounds on which a case can be based, described below.
North Carolina permits a dog bite victim to recover compensation on the traditional ground of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person's conduct in a given circumstance doesn't measure up to the conduct of an ordinarily prudent and careful person, then that person is negligent.
“The elements of negligence are: 1) legal duty; 2) breach of that duty; 3) actual and proximate causation; and 4) injury.” (Mabrey v. Smith, 144 N.C. App. 119, 122, 548 S.E.2d 183, 186.) "Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff’s injuries, and without which the injuries would not have occurred.” (Lord v. Beerman, 191 N.C. App. 290, 294, 664 S.E.2d 331, 334 (2008).)
For example, in Griner v. Smith, 43 N.C. App. 400, 407, 259 S.E.2d 383, 388 (1979), the owners of a Rottweiler which previously had not behaved viciously toward people was nevertheless held liable under the doctrine of negligence because they should have known the "general propensities" of Rottweilers to be territorial, aggressive and unpredictable. The court stated:
“[N]ot all actions seeking recovery for damage caused by a domestic animal need involve the vicious propensity rule....The owner of a domestic animal is chargeable with knowledge of the general propensities of certain animals and he must exercise due care to prevent injury from reasonably anticipated conduct."
Another example of general negligence is Williams v. Tysinger, 328 N.C. 55, 399 S.E.2d 108 (1991), an important case even though it involved a horse and not a dog. In Williams, the owner of a horse which did not previously act viciously was held liable for negligence after the horse kicked a young child in the head. The court said that liability was justified "not [because of] the wrongful keeping of a vicious animal; rather ... encouraging two young children to play with a horse after being warned by the children's mother that they had no familiarity with horses or any other large animals." 328 N.C. at p. 60, 399 S.E.2d at p. 111. The court in Hill v. Williams, 144 N.C. App. 45, 547 S.E.2d 472, rev. denied, 354 N.C. 217, 557 S.E.2d 531 (2001), approved the application of the rule in Williams to dog bite cases.
Negligence per se
North Carolina permits dog bite victims to sue on the ground of negligence per se. This doctrine is very important because it frequently is the only available ground for recovery. It applies when the defendant (a dog owner or someone having custody of the dog) violates an animal control law.
In order to prevail on a claim of negligence per se, plaintiff must show, (1) a duty created by a statute or ordinance; (2) that the statute or ordinance was enacted to protect a class of persons which includes the plaintiff; (3) a breach of the statutory duty; (4) that the injury sustained was suffered by an interest which the statute protected; (5) that the injury was of the nature contemplated in the statute; and, (6) that the violation of the statute proximately caused the injury. (Hardin v. York Memorial Park, 730 SE 2d 768, 776, 221 NC App. 317 (2012).)
For example, section 91.07 of the Wake County Code of Ordinances states in relevant part that "[i]t shall be unlawful for any owner to permit an animal to be at large." The violation of this ordinance constitutes negligence per se.
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 if (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. An emerging ground for liability is the dog owner's failure to stop a dog attack after it has begun. 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.
North Carolina enforces the one bite rule by using the traditional formulation of the rule (see The One Bite Rule) as well as by operation of section 67-4.4 of the North Carolina General Statutes, linked above.
North Carolina negligence laws follow the doctrine of contributory negligence, which bars recovery by the plaintiff if he or she is partially at fault. The majority of other states follow the doctrine of comparative negligence, in which the amount of damages is reduced in proportion to the plaintiff's degree of fault. As a practical matter, the doctrine of contributory negligence favors insurance companies over dog bite victims.
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