Delaware Dog Bite Law

A dog bite victim in Delaware can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort. The dog liability statute covers non-bite injuries too.

Overview

Delaware has one of the better dog bite laws in the United States, Delaware Code section 1711. This is because it covers all injuries, not just bites, and all victims, not just human beings. The state follows all of the doctrines that permit a dog bite victim to proceed against not only the dog owner but potentially other third parties as well. Those are the doctrines of negligence, negligence per se, scienter, and intentional tort.

Dog bite statute

§ 1711. Liability of dog owner for damages

The owner of a dog is liable in damages for any injury, death or loss to person or property that is caused by such dog, unless the injury, death or loss was caused to the body or property of a person who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting or abusing the dog.

Negligence

Delaware allows a dog bite victim to recover against a defendant whose negligence caused the incident to happen. For example, a day care operator might be held liable for a bite to the face of a child at the day care facility, if the operator allowed a stray dog to come onto the premises and interact with the child.

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. On the other hand, if the person’s conduct does measure up to the conduct of a reasonably prudent and careful person, the person wasn’t negligent. Russell v. K-Mart, Del. Supr., 761 A.2d 1, 5 (2000).

Negligence per se

Delaware law states that no dog is allowed to run free unless the dog is accompanied by the owner or a custodian and is under reasonable control, or unless the dog remains on the owner’s property. Delaware Code Annotated, Title 7, sec. 1705. Violation of this law constitutes negligence per se, or negligence as a matter of law. Duffy v. Gebhart, Del. Super., 157 A.2d 585, 586 (1960).

Scienter

Delaware like other American states holds the owner, keeper or harborer of a dog liable for “scienter.” This is the term used in the common law for the cause of action against an owner, keeper or harborer of a domestic animal having the dangerous propensity to cause harm, such as by biting. If scienter is proved, the defendant is held strictly liable for the harm. Negligence is not an element of scienter except in states that confuse the scienter and negligence causes of action. Negligence is based on unreasonable actions or unreasonable failing to act, while scienter is based on only knowledge of an animal’s dangerous propensity. Delaware courts have correctly ruled that negligence is not an element of the scienter cause of action, and that scienter is not an element of the negligence cause of action.

In F. Giovannozzi & Sons v. Luciani, 2 Terry 211, 18 A.2d 435, 436-437 (Del. Super. 1941) Chief Justice Layton specifically rejected the contention that a claim of negligence was necessary in a case involving a dangerous or vicious animal. After careful consideration of the common law rule and the Delaware cases applying it, the Chief Justice held that the common law rule of strict liability in tort, without negligence, for dangerous or vicious animals, was, and had always been, the law of Delaware. (Handy v. Uniroyal, Inc., 327 F. Supp. 596 (1971).)