A dog bite victim in West Virginia can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort. There is an unusual limitation to the dog bite statute: it is limited to dogs running at large.
- Litigation forms and other materials for attorneys
- If your case involves injury to a dog, see When a Dog Is Injured or Killed
Although West Virginia has a dog bite statute, it is limited to dogs running at large. Code of West Virginia, section 19-20-13, reads as follows:
§19-20-13. Dog running at large; liability of owner.
Any owner or keeper of any dog who permits such dog to run at large shall be liable for any damages inflicted upon the person or property of another by such dog while so running at large.
In Marcum v. Ballomy, 157 W.Va. 636 (Sup. Ct. of App., W. Va., 1974), the state supreme court of appeals held that section 19-20-13 imposes strict liability, meaning that the victim does not have to prove that the dog owner was negligent in order to recover compensation for injuries inflicted by the dog. The court's decision states:
It is the obvious intention of Code, 19-20-13, as amended, to place responsibility for damage done by dogs upon the owner of such dog, in spite of the words in this statute "who permits such dog to run at large." The qualifying words "who permits such dog to run at large," would avail a person a defense on his own property, and probably a defense if a third party were to enter upon the land and release a dog properly confined without the owner's knowledge, consent, or implied consent. A dog is permitted to run at large if he is not properly secured.
If a person is bitten and section 19-20-13 does not apply, then the victim has to satisfy one of the traditional grounds for dog bite liability. An owner or person having custody of the dog still may be held liable if the dog previously bit a person or exhibited other dangerous conduct, or if that person was negligent, or if he or she violated a local public safety law. For further details, see Legal Rights of Dog Bite Victims in the USA.
West Virginia is a limited strict liability state. If a dog is not running at large, and negligence or another ground for recovery does not exists, the state applies the ancient and inhumane "one bite rule." See The One Bite Rule for details.
The dog bite law of this state needs to be amended so that it supports responsible dog ownership and the victims of attacks. As it now reads, with the exception mentioned above, a dog and a dog owner get one free bite, one free mauling, or one free homicide. Most states in this country have opted for a dog bite law that follows modern American notions about personal responsibility -- under the majority view,a dog owner is legally liable for the first bite and every bite. This requires dog owners to be vigilant in protecting others. West Virginians and their children and senior citizens deserve no less.
When it comes to the rights of minors who are injured by dogs, West Virginia will not reduce a minor's monetary recovery under the doctrine of comparative negligence if the minor is under 7 years of age, because of the presumption that a child that young is not capable of negligence. If the child is between 7 and 14, there is a rebuttable presumption that he is not capable of negligence, which can be overcome by evidence that he possessed sufficient discretion to know he was being unreasonable in taking action or omitting to take action, and therefore can be regarded as negligent. Pino v. Szuch (W. Vir. Sup. Ct. of App., 1991) 408 S.E.2d 55.