A dog bite victim in Nebraska can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort. Dog owners are liable for any and all damages to anyone except a trespasser. The dog bite statute has an unusual limitation: it does not apply if the dog caused the accident through playfulness or mischievousness.

Overview

Nebraska has the following strict liability law:

54-601.   Dogs; personal property; owner liable for damages.

Dogs are hereby declared to be personal property for all intents and purposes, and the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (1) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs and (2) to any person, firm, or corporation by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person, firm, or corporation. Such damage may be recovered in any court having jurisdiction of the amount claimed.

The foregoing statute does not apply only to bites, but to any means of injury, including scratches, knock-downs, etc. The legislative intent in this regard was set forth in Underhill v. Hobelman, 279 Neb. 30, 34 (2009).

It has been held that the dog bite statute does not apply to damages caused by playful and mischievous acts of dogs. Donner v. Plymate, 193 Neb. 647, 649-650 (1975), Underhill v. Hobelman, 279 Neb. 30, 33 (2009). In such cases, the victim must satisfy the requirements of the "one bite rule" (i.e., the scienter cause of action), or any of the other causes of action described in Legal Rights of a Dog Bite Victim. This part of the statute is seriously flawed because it creates uncertainty. For one thing, it is impossible to cross-examine a dog to determine what its intention was when it harmed a person. A judge or jury would have to base their decision on observations by witnesses untrained in animal behavior; additionally, witnesses to dog attacks usually include family members, friends and neighbors of the victim and/or dog owners, so the testimony would be untrustworthy whether or not it actually was erroneous, biased or false.

Secondly, the word "mischievous" creates a broad defense that certainly was not intended by lawmakers. The word means "intending to harm someone" to some degree. (See Miriam-Webster's definition of mischievous.) If a dog intended to harm the victim, no rational purpose is served by making the canine's mischievousness a defense. Indeed, one state (California) makes it a felony carrying a 4-year prison term to possess a "mischievous" dog that inflicts injury resulting from its owner's negligence. (See Felony or Misdemeanor for Injury by Vicious Dog or "Mischievous Animal.")

This unusual limitation on the dog bite statute should prompt an amendment to the statute, which should make clear that liability exists no matter what the dog's apparent intentions were.

 

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