Wisconsin Dog Bite Law

A dog bite victim in Wisconsin can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter, and intentional tort.

• Overview
• Litigation forms and other materials for attorneys
• If your case involves injury to a dog, see When a Dog Is Injured or Killed

Overview

The dog bite statutes of Wisconsin make a dog owner strictly liable for damages resulting from a bite or attack by the dog on another person, domestic animal or property. If the dog’s owner knew that the dog previously caused injuries, the owner must pay double damages. The owner also faces a fine and other penalties. In addition to the statutory laws, Wisconsin holds dog owners, harborers and keepers liable for scienter and negligence. For more about these causes of action in general, see Legal Rights of Dog Bite Victims in the USA.

Liability based on the dog bite statute

Wisconsin Statutes section174.02(1) provides that “the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property,” and the statute allows for double damages if the owner of the dog “was notified or knew that the dog previously injured or caused injury to a person, domestic animal or property.” See sections 174.02(1)(a) and (b):

A dog owner also faces statutory penalties:

Section 174.02(1) has been interpreted to impose strict liability on a dog owner, “subject only to the defense of comparative negligence.” See Becker v. State Farm Mut. Auto. Ins. Co., 141 Wis.2d 804, 808, 416 N.W.2d 906 (Ct. App. 1987). Under the statute, liability is limited to owners, a category that includes keepers and harborers pursuant to sections 174.001(5) and 174.02(1). This definition of “owner” has been held to provide a defense where a dog belonging to more than one owner, harborer or keeper injures a different owner, harborer or keeper of the same dog; in such a case, the statute does not apply, although other grounds for liability (such as negligence) do. Armstrong v. Milwaukee Mutual Insurance Co. , 202 Wis.2d 258, 549 N.W.2d 723 (1996).

Liability based on scienter and negligence

A dog owner or keeper can be held liable for canine-inflicted injuries that result from a known dangerous propensity of the dog, or other negligence on the part of the owner or keeper of the dog. “At common law the owner or keeper of a dog was not liable for the vicious or mischievous acts of the dog unless he had prior knowledge of the vicious or mischievous propensities of the dog or unless the injury was attributable to the negligence of the owner or keeper.” Chambliss v. Gorelik, 52 Wis. 2d 523, 528, 191 N.W.2d 34 (1971). The common-law rule first requires the owner or keeper to use ordinary care in controlling the characteristics normal to the animal’s class. . . . The common-law rule further allows the plaintiff to show that the individual animal had vicious or mischievous propensities, and that the owner or keeper knew or should have known of them. Thus, “[t]he liability of an owner or keeper is predicated upon the failure to exercise ordinary care in the restraint and control of the animal.” Id. at 958. “The common-law rule first requires the owner or keeper to use ordinary care in controlling the characteristics normal to the animal’s class. . . . The common-law rule further allows the plaintiff to show that the individual animal had vicious or mischievous propensities, and that the owner or keeper knew or should have known of them.” White v. Leeder, 149 Wis. 2d 948, 955-56, 440 N.W.2d 557 (1989). Thus, “[t]he liability of an owner or keeper is predicated upon the failure to exercise ordinary care in the restraint and control of the animal.” Id. at 958.

Wisconsin case law holds that negligence is based upon the foreseeability of an injury. “‘A party is negligent when he commits an act when some harm to someone is foreseeable.'” Rockweit v. Senecal, 197 Wis. 2d 409, 420, 541 N.W.2d 742 (1995) (quoting Rolph v. EBI Cos., 159 Wis. 2d 518, 520, 464 N.W.2d 667 (1991)). “[T]he primary question we ask is not whether the defendant has a duty to take (or refrain from) certain actions, but whether the defendant’s actions (or lack thereof) were consistent with the general duty to exercise a reasonable degree of care under the circumstances.” Smaxwell v. Bayard, par. 32, 274 Wis.2d 278 (Wis. 2004). In Wisconsin “all persons have a duty of reasonable care to refrain from those acts that unreasonably threaten the safety of others.” Antwaun A., 228 Wis. 2d at 55 (citing Klassa v. Milwaukee Gas Light Co., 273 Wis. 176, 77 N.W.2d 397 (1956)). See also Gritzner, 235 Wis. 2d 781, par. 20 (“At the very least, every person is subject to a duty to exercise ordinary care in all of his or her activities.”). Thus, the decision to preclude liability should normally be based on public policy, rather than the notion of duty. Id., par. 24. “Public policy may bar recovery against the negligent tortfeasor if this court determines any of the following: (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor’s culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; (4) allowing recovery would place too unreasonable a burden upon the tortfeasor; (5) allowing recovery would be too likely to open the way to fraudulent claims; or (6) allowing recovery would have no sensible or just stopping point.” Smaxwell, id., par. 40.

Liability of landlords

Wisconsin permits suits against landlords in very limited circumstances. In Smaxwell v. Bayard, 274 Wis.2d 278 (Wis. 2004), the state supreme court held that “common-law liability of landowners and landlords for negligence associated with injuries caused by dogs is limited to situations where the landowner or landlord is also the owner or keeper of the dog causing injury.”