Pennsylvania makes dog owners and keepers strictly liable for the payments of a victim's medical costs. Full compensation is available only if the victim can prove that the dog owner, keeper or harborer was negligent or knew that the dog had dangerous propensities. 

Overview

“Generally, it is the animal's owner that is responsible for injuries to others caused by his or her pet.” Dick v. Detwiler, 7 Pa. D. & C.4th 629, 631 (Com. Pl. 1990) (citing Miller v. Hurst, 302 Pa. Super. 235, 448 A.2d 614 (1982) superseded on other grounds as recognized in Billig v. Skvarla, 853 A.2d 1042, 1046-48 (Pa. Super. Ct. 2004); Villaume v. Kaufman, 379 Pa. Super. 561, 550 A.2d 793 (1988)).

Under Pennsylvania law, landlords, dog owners, and dog keepers have a duty to ensure that their dogs do not cause injury to others.” Luberto v. Ellis, 48 Pa. D. & C.4th 553, 557 (Com. Pl. 2000). Because the element common “among the above mentioned groups is control over the physical presence of the dog,” one cannot be liable if there is a lack of control. Luberto, 48 Pa. D. & C.4th at 557; see also Andrews v. DeStefano, 71 Pa. D. & C.4th 497, 503 (Com. Pl. 2005).

“Pennsylvania,. . . does not impose absolute liability upon dog owners for injuries occasioned by their dogs. Proof of the owner’s negligence is required.” Rosenberry v. Evans, 48 A.3d 1255, 1258 (Pa. Super. Ct. 2012) (citing McCloud v. McLaughlin, 837 A.2d 541 (Pa. Super. Ct. 2003)). In other words, “‘proof of negligence, in contrast to holding one absolutely liable, is the vehicle by which accountability for injury sustained because of a dog bite is to be established.’” McCloud, 837 A.2d at 544 (quoting Deardorff v. Burger, 606 A.2d 489, 493 (Pa. Super. Ct. 1992)).

Liability Based on Dangerous Propensities

The common law cause of action for scienter permits a victim to recover full compensation if the dog previously bit another person without justification or indicated a tendency to do so.

Pennsylvania Legal Encyclopedia, Volume 2 Animals, Section 24 at page 113-114, sets forth the following elements of proof of viciousness:

"A dog's vicious propensities may be brought to the owner's notice by acts of agression on the part of the dog. These acts of agression need not be precisely similar to act or acts on which the action is founded. Although a single instance of the vicious conduct on the part of the dog is sufficient to effect the owner with notice of the dog's vicious propensities, it is not the rule in this state that a dog is entitled to one `free' bite, before it becomes a source of liability to its owner.

"Although the mere fear of a dog does not prove that the dog that excites the fear is vicious, where it is shown that on previous occasions the dog had rushed at other persons in a vicious manner, and that his keeper had been obliged to call him off, or that the dog had chased a witness for the plaintiff and had been beaten off by stones, and was always growling at passersby, the viciousness of the dog is sufficiently established."

In Groner v. Hendrick, 403 Pa. 148, 169 A.2d 302 (1961) the Pennsylvania Supreme Court held, 463 Pa. at 303, 169 A.2d 302: "A large, strong, and overly friendly dog may be as dangerous as a vicious one, and one recital of the dog's behaviour at home is enough to bring knowledge to his owners' when considered together with its size and their apparent knowledge that it might jump up on people".

“A reasonable jury need only be able to arrive at reasonable inferences that the animal was likely to commit the act of the kind complained of.” Fenlon v. James, No. 2800 CIVIL 2006, 2008 WL 6478565 (Pa. Com. Pl. Sept. 19, 2008) (citing Andrews v. Smith, 324 Pa. 455, 188 A. 146 (1936)).

If a dog is vicious, trespass is not a defense. Darby v. Clare F. and R. Co., 170 A. 387 (Pa. Super. Ct. 1933). In Eberling v. Mutillod (N.J.), 101 A. 519, 520, the court said: "The doctrine is that, in an action for injuries caused by an attack by a vicious animal kept by a person on his premises, the mere fact that the injured person was a trespasser at the time will not, as a matter of law, defeat the action. A leading case on this subject is that of Marble v. Ross,124 Mass. 44." See, also, Cooley on Torts, Vol. 2, (3d ed.), p. 697.

Liability Based on Common Law Negligence

A common law negligence claim requires the plaintiff to demonstrate the following elements: (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) the defendant's failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the plaintiff. Mangino v. Cowher, No. 11194 OF 2008, 2010 WL 3923581 at 442 (Pa. Com. Pl. June 11, 2010), quoting McMahon v. Pleasant Valley West Association, 952 A.2d 731, 735 (Pa. Commw. 2008).

“A dog owner may always show that his or her dog escaped despite the exercise of due care. In such cases, the roving of the dog would not constitute negligence.” Mangino. 2010 WL 3923581 at 433 (quoting Miller, 302 Pa. Super. at 244 n.8, 448 A.2d at 619 n.8.) “Whether an owner exercised due care despite the dog's escape is also a question for the trier of fact in certain circumstances.” Id.

Plaintiff always must prove that the negligent act was the cause of the harm suffered. See Toolan ex rel. Toolan v. Cerulli, 2006 WL 4642834, 81 Pa. D. & C. 4th 225, 233 (Pa. Ct. Com. Pl. Monroe Cnty. Dec. 14, 2006) (stating an example of a meritorious defense “where it is asserted that plaintiff’s injury is not the result of defendant’s negligence, and that the injuries complained of occurred as a result of an unforeseeable event.”)

Common Law Negligence Is Available As a Cause of Action

“A party may rely on common-law principles, in addition to statutory violations, to establish liability.” Mangino, 2010 WL 3923581 (citing Deardorff, 606 A.2d at 493).

A number of Pennsylvnia cases incorrectly rely on a 1936 case, Andrews v. Smith, 324 Pa. 455, 188 A. 146 (1936), as authority for the proposition that an owner cannot be held liable for injuries caused by his or her dog “unless the owner had knowledge of the animal’s dangerous propensities and failed to take proper steps to prevent the animal from harming people.” Mangino v. Cowher, No. 11194 OF 2008, 2010 WL 3923581 at 442 (Pa. Com. Pl. June 11, 2010), citing Andrews, 324 Pa. at 458.

Andrews was decided on principles applicable to cases involving a dog's vicioius propensities, not on negligence law. The defendants had a German shepherd "for the purpose of protecting their property against marauders" and they "allowed the dog to run at large for exercise in the night time." Under modern precedents, those facts certainly would be sufficient to establish liability based on negligence, but the Andrews decision affirmed a nonsuit against the plaintiff because of insufficient proof that the dog was vicious, not considering whether its owners were negligent.

Andrews cited a Pennsylvania case that went to pains to differetiate between cases based on negligence and those based on "scienter" or knowledge of viciousness ("Negligence or lack of care on the part of the owner in keeping or restraining the animal need not be shown, and proof of the absence thereof is no defense. . . ." at page 540.) Andrews also relied heavily on English law and other ancient precedents which do not reflect modern dog bite law in Pennsylvania or anywhere else.

Andrews has led to lower courts making statements such as "the owner of a dog is not responsible for the consequences of his dog's actions if he has no reason to know of the viciousness or dangerous propensities of the dog beforehand.” Fenlon v. James, No. 2800 CIVIL 2006, 2008 WL 6478565 (Pa. Com. Pl. Sept. 19, 2008) (citing Snyder v. Milton Auto Parts Inc., 285 Pa. Super. 559, 428 A.2d 186 (1981) which was a case like Andrews based on an attack by a clearly vicious dog). On their face, these statements seem to preclude any case based on negligence, but they are based on dangerous propensity decisions and clearly Pennsylvania dog bite law includes negligence principles as well as dangerous propensity principles.

Negligence per se

In order to state a claim based on negligence per se, four requirements must be met: (1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally; (2) The statute or regulation must clearly apply to the conduct of the defendant; (3) The defendant must violate the statute or regulation; and (4) The violation of the statute or regulation must be the proximate cause of the plaintiff's injuries. Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058-59 (Pa. Super. 2003) (citations and quotations omitted); see also Roth v. Cabot Oil & Gas Corp., 919 F. Supp. 2d 476, 488 (M.D. Pa. 2013). “The concept of ‘negligence per se’ establishes the elements of duty and breach of duty where an individual violates an applicable statute, ordinance, or regulation designed to prevent a public harm.” Mahan, 841 A.2d at 1058 (citing J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582, 585 (Pa. Super. Ct. 1997)).

Although negligence per se and common law negligence “impose different standards and can lead to different outcomes,” Baker v. Mayhart, 2012 WL 3965165 (Pa. Com. Pl. Sept. 5, 2005), it has been held that statutory requirements can be used as the standard for determining whether a person has complied with the common law duty to exercise reasonable care. Deardorff, 414 Pa. Super. at 52. Nevertheless, “Negligence per se is a separate legal theory having elements and underlying rationales different from the other two theories.” McCloud v. McLaughlin, 2003 PA Super 451, ¶ 8, 837 A.2d 541, 544 (2003).

The Dog Law

The Dog Law is a group of statutes that regulate dogs and provide remedies for harm that they cause. The law is applicable statewide and is found at 3 P.S. section 459-101 to 1205, 3 P.S. section 501, 531 to 532, 34 Pa.C.S.A. sections 2381 to 2386, and 34 Pa.C.S.A. sections 2941 to 2945.

Under the Dog Law, the owner or keeper of a biting or attacking dog is legally liable for payment of all of the victim's medical costs. (Sec. 459-502, subdivision (b): "Any cost to the victim for medical treatment resulting from an attacking or biting dog must be paid fully by the owner or keeper of the dog.") If he suffered a severe injury, moreover, he can recover full compensation for all of the harm he endured, meaning pain, suffering, disfigurement, anxiety, loss of income and future earning potential, and all else. A "severe injury" is "any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery." (Sec. 459-102.)

Miller v. Hurst, 302 Pa. Super. 235, 448 A.2d 614 (1982) was a negligence per se case, meaning a case based upon the violation of an animal control law. In Miller, a dog injured the victim while the dog was running loose. The court adopted the statutory requirements of section 459-305 of the Dog Law as the standard to be applied in determining whether a dog owner has exercised due care in the supervision of his dog. The court held that an unexcused violation of the Dog Law is negligence per se. To this extent, Miller abrogated the common law "one free bite" rule, under which an animal was required to be restrained only after its behavior evidenced viciousness.

Miller did not, however, completely abolish the "one free bite" rule. A footnote in the court's decision asserted that a dog owner may always show that the dog escaped despite the exercise of due care, and that in such cases negligence would not be found. The footnote explicitly rejected imposing absolute liability upon the dog owner in every case.

Following the Miller decision, revisions to the Dog Law were enacted. Additional criminal penalties were imposed if the injury to the victim was severe.

In Commonwealth v. Hake, 738 A.2nd 46 (Pa. Commw. Ct. 1999) it was held that a single incident of infliction of severe injury imposes criminal liability under the above statute, therefore eliminating the "one free bite" interpretation under the prior version of the Dangerous Dog Statute. The Court stated:

"The 1996 amendments to the Statute no longer require that the dog be found specifically 'dangerous.' After the amendments, the Statute imposes liability where any of the following situations arise:
a dog, while on public or private property, inflicts severe injury on a human being without provocation; or attacks a human being without provocation and where the dog has either (or both) a history of attacking human beings or animals without provocation or a propensity to attack human beings and/or domestic animals without provocation. Most importantly, the 1996 amendments specifically provide that the propensity to attack may be proven by a single incident of the infliction of severe injury or attack on a human being, clearly permitting a finding of a 'propensity' to attack human beings by virtue of the attack in question, even if it is only the first attack. ... Without permitting a strict liability interpretation of this statute, the difficulty of establishing culpability for injuries would surely frustrate the purpose of the Statute. ... The 1996 amendments effectively removed the previous 'one free bite' interpretation and the Statute now permits liability for the dog's first bite."

The courts have held that violations of the Dog Law constitute negligence per se. The Dog Law was enacted “to protect the public from personal injury, property damage, and other hazards created by roving dogs.” Deardorff v. Burger, 606 A.2d 489, 492 (Pa. Super. Ct. 1992). Therefore “an unexcused violation of the Dog Law is negligence per se.” Miller, 448 A.2d at 618-19; see also Villaume v. Kaufman, 379 Pa. Super. 561, 550 A.2d 793, 795 (1988).

It has been noted that “courts have determined that the propensity to attack may be proven by a single incident, even if it is only the first attack.” Mangino v. Cowher, No. 11194 OF 2008, 2010 WL 3923581 (Pa. Com. Pl. June 11, 2010) (citing Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1205 (Pa. Super. Ct. 2008), Commonwealth v. Hake, 738 A.2d 46, 50 (Pa. Commw. 1999); Rosen ex rel. Rosen v. Tate, 64 Pa. D. & C.4th 524, 530-31 (Com. Pl. 2003)).

Section 502-A has been deemed “an appropriate standard for determining whether a person has complied with the common-law duty to exercise ordinary care, and a violation of said statute constitutes negligence per se.” Rosen, 64 Pa. D. & C.4th at 530-31; see also Mangino, 2010 WL 3923581 (allowing plaintiffs to demonstrate prima facie evidence of negligence per se based on a purported violation of section 502-A and where evidence was presented that dog had pursued the plaintiff and attempted to pursue others on different occasions); Harrison v. Haueisen, 2015 WL 1958384 (Pa. Com. Pl. April 2, 2015); but see Kormos v. Urban, No. GD 03-25548, 2005 WL 3970805, at 3 (Pa. Com. Pl. Sept. 15, 2005) aff'd, 911 A.2d 193 (Pa. Super. Ct. 2006) (stating that the text of section 502-A “itself reveals that it was not meant to be the basis of a civil lawsuit”).

But a single violation in and of itself is not enough. The court in Rosen noted that "the statutory language does not provide that a single incident of attacking a human being proves a propensity to attack, only that it may prove such propensity. It appears that a plaintiff may prove a cause of action by establishing the facts of a single incident, but a defendant will have the opportunity, and burden, of proving that such incident does not rise to a determination of a “propensity” to attack. It is axiomatic that such determination will be left for the trier of fact." Rosen, 64 Pa. D. & C.4th at 531-32.

It has been stated that in order to demonstrate that the violation of section 502-A was a substantial factor in the bringing about the injuries complained of, liability for negligence per se must be based on “an owner’s knowledge of his dog’s viciousness and his failure then to take proper steps to prevent that viciousness displaying itself to the hurt of human beings.” Deardoff, 414 Pa. Super. at 50 (citing Andrews, 324 Pa. at 459-60). It was incorrect to cite Andrews, however, because it was a 1936 case based on the 1927 version of the Dog Law, which was amended as recently as 1996, which is why the court in Commonwealth v. Hake 738 A.2nd 46 (Pa. Commw. Ct. 1999) stated "The 1996 amendments to the Statute no longer require that the dog be found specifically 'dangerous.' . . . The 1996 amendments effectively removed the previous 'one free bite' interpretation and the Statute now permits liability for the dog's first bite."

If the jury finds a violation of the Dog Law, as the basis for the duty and breach of a duty for negligence per se, they must then determine whether the violation was a substantial factor in bringing about the injury sustained. Causation still must be proved because “a mere violation of the Dog Law does not establish the causation factor required for a finding of liability.” Underwood, 954 A.2d at 1205. Instead, “[w]here proof of negligence rests upon a violation of the Dog Law, liability does not attach unless the violation is a substantial factor in bringing about the injuries sustained.” Miller, 448 A.2d at 619.

Conviction for Violation of the Dog Law Is Inadmissible for Collateral Estoppel Purposes

Miller states that “that an unexcused violation of the Dog Law is negligence per se.” 302 Pa. Super. at 244. Folino v. Young, 523 Pa. 532, 537, 568 A.2d 171, 173-74 (1990) states “that convictions for summary offenses by themselves, where an accused is not entitled to a jury trial, are inadmissible” as proof of negligence in a civil suit. 543 Pa. at 529. See also Toolan ex rel. Toolan v. Cerulli, 2006 WL 4642834, 81 Pa. D. & C.4th 225, 232 (Pa. Com. Pl. Dec. 14, 2006) (“violation of the Dog Law, . . . as a summary offense only.. . . is inadmissible for collateral estoppel purposes”)

Assumption of the Risk

Pennsylvania case law permits the defense of assumption of the risk for dog bite cases. Allen v. Tanchuk, No. 11005 OF 2007, 2009 WL 6477035 (Pa. Com. Pl. Nov. 10, 2009) (citing Groner v. Hedrick, 403 Pa. 148, 153, 169 A.2d 302, 304 (1961).)

Landlord liability

The federal court in Gallick v. Barto,  828 F. Supp. 1168, 1174-1175 (M.D. Pa. 1993), quoting Palermo v. Nails, 334 Pa. Super. 544, 547-548, 483 A.2d 871, 873 (1984), and applying Pennsylvania law, held that "‘a landlord . . . may be held liable for injuries by animals owned and maintained by his tenant when the landlord has knowledge of the presence of the dangerous animal and where he has the right to control or remove the animal by retaking possession of the premises.'"

Further reading

The Pennsylvania Department of Agriculture has a special web site for the Bureau of Dog Law Enforcement.

The Pennsylvania Code contains the regulations pertaining to dogs. The Dangerous Dog Law at 3 P.S. § 459-502-A is not a penal statute under the Crimes Code (Title 18), but is a regulatory statute, administered and enforced by the Department of Agriculture (Title 7, Chapter 27 of the Pa. Code). See Commonwealth v. Hake 738 A.2nd 46 at footnote 3.

The Pennsylvania rules pertaining to the settlement of claims by minors: Rule 2039 (settlement of claim involving a minor), Rule 5101 (minor's settlement less than $25,000 can be received by minor or his parents but must be invested pursuant to the court's direction), Rule 5112 (if settlement exceeds $25,000, parents cannot act as guardians unless they are co-guardians with a fiduciary), Rule 5121 (guardian is required to post a bond), Rule 5145 (guardian is required to obey the prudent investor rule provided by Ch. 72).

 

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