There are a number of causes of action available to the victim of a dog attack in Texas. They include negligence, causing a dog bite by violating an animal control law, failing to stop a dog attack which is in progress, and keeping a dog that is known to be vicious.
One Bite Rule
Texas adheres to the so-called "one bite rule." Marshall v. Ranne, 511 SW 2d 255 (Tex: Supreme Court 1974). The Marshall court specifically relied upon Restatement of Torts section 509, which sets forth the traditional doctrine that makes a person liable for harm inflicted by a domestic animal. It is referred to as "scienter" (the Latin word for "knowingly"), "common law strict liability," and "the one bite rule." As it applies to dog bites, this doctrine holds that a victim can recover compensation from the owner, harborer or keeper of a dog if (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog's previous conduct. If either of those conditions are not met, however, the victim cannot employ this doctrine as a ground for recovery.
In Lewis v. Great Southwestern Corporation, 473 S.W.2d 228 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n. r. e.), the court expressed the rule in the following manner: "The owner of a dog is not liable for injuries caused by it, unless it is vicious and knowledge or constructive notice of that fact is shown or brought home to the owner."
For more information about this doctrine, see The One Bite Rule.
Negligence
This state also permits a dog bite victim to recover compensation on the ground of negligence. Marshall v. Ranne, 511 S.W.2d 255, 259 (Tex.1974). In the Marshall case, the court stated that an owner of a non-vicious animal can be "subject to liability for his negligent handling of such an animal." 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 is negligent. For example, letting a stray dog into a day care center is negligence. "To recover on a negligent handling claim, a plaintiff must prove: (1) the defendant owned or possessed an animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the defendant's breach proximately caused plaintiff's injury." Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex.App.-Waco 2002, no pet.). The negligence cause of action makes it unnecessary to prove that the dog previously bit a person or acted like it wanted to. Id.; Dunnings v. Castro, 881 S.W.2d 559, 562-63 (Tex .App.-Houston [1st Dist.] 1994, writ dism'd). For more information about negligence, see Negligence.
Negligence based on violating an animal control law
In Texas, the violation of an animal control law can result in liability on the part of the violator, whether or not he owns the dog. States, counties and cities often have laws requiring dogs to be on leash, or prohibiting them from being at large or from trespassing. With few exceptions, courts have ruled that violating such laws can be the basis of liability. In this state, the violation constitutes negligence per se. To prevail on a claim, the litigant alleging negligence per se must show that there was a violation of a statute or an ordinance. See Moughon v. Wolf, 576 S.W.2d 603, 603 (Tex. 1978) (citing Missouri Pac. R.R. v. American Statesman, 552 S.W.2d 99, 102 (Tex. 1977)). The plaintiff must prove that the violation was the cause of his injuries. Searcy v. Brown, 607 SW 2d 937 (Tex: Court of Civil Appeals, 1980) (finding no negligence or negligence per se in allowing dogs to run at large on the owner's property).
Texas is one of the states that prohibits "chaining" or tethering a dog under certain circumstances. Here is the text of the statute, Health and Safety Code section 821.077:
Sec. 821.077. UNLAWFUL RESTRAINT OF DOG. (a) An owner may not leave a dog outside and unattended by use of a restraint that unreasonably limits the dog's movement:
(1) between the hours of 10 p.m. and 6 a.m.;
(2) within 500 feet of the premises of a school; or
(3) in the case of extreme weather conditions, including conditions in which:
(A) the actual or effective outdoor temperature is below 32 degrees Fahrenheit;
(B) a heat advisory has been issued by a local or state authority or jurisdiction; or
(C) a hurricane, tropical storm, or tornado warning has been issued for the jurisdiction by the National Weather Service.
(b) In this section, a restraint unreasonably limits a dog's movement if the restraint:
(1) uses a collar that is pinch-type, prong-type, or choke-type or that is not properly fitted to the dog;
(2) is a length shorter than the greater of:
(A) five times the length of the dog, as measured from the tip of the dog's nose to the base of the dog's tail; or
(B) 10 feet;
(3) is in an unsafe condition; or
(4) causes injury to the dog.
It should be noted that there are exceptions to the state's anti-chaining law, contained in section 821.078:
Sec. 821.078. EXCEPTIONS. Section 821.077 does not apply to:
(1) a dog restrained to a running line, pulley, or trolley system and that is not restrained to the running line, pulley, or trolley system by means of a pinch-type, prong-type, choke-type, or improperly fitted collar;
(2) a dog restrained in compliance with the requirements of a camping or recreational area as defined by a federal, state, or local authority or jurisdiction;
(3) a dog restrained for a reasonable period, not to exceed three hours in a 24-hour period, and no longer than is necessary for the owner to complete a temporary task that requires the dog to be restrained;
(4) a dog restrained while the owner is engaged in, or actively training for, an activity that is conducted pursuant to a valid license issued by this state if the activity for which the license is issued is associated with the use or presence of a dog;
(5) a dog restrained while the owner is engaged in conduct directly related to the business of shepherding or herding cattle or livestock; or
(6) a dog restrained while the owner is engaged in conduct directly related to the business of cultivating agricultural products, if the restraint is reasonably necessary for the safety of the dog.
These exceptions do not apply everywhere in the state. Counties in Texas also have their own anti-chaining laws that in some cases are broader or stricter than the state law set forth above. For example, section 13 of the Harris County Code of Ordinances echoes section 821.077 of the state law almost word-for-word but does not contain the exceptions given by section 821.078. The violation of such a county law can also be used as the basis for imposing liability under the doctrine of negligence.
In cases involving a dog that is at large, it is not necessary to prove that doing so was a violation of an ordinance, if the defendant had actual or constructive knowledge that would "put a person of ordinary prudence on notice that permitting his dog to run at large might cause injury to another." Dakan v. Humphreys, 190 S.W.2d 371, 373 (Tex.Civ.App-Eastland 1945, no writ), disapproved on other grounds by Marshall v. Ranne, 511 S.W.2d 255, 257-58 (Tex.1974).
Failure to stop attack in progress
Texas supports the cause of action for failing to stop a dog attack after it has begun. In Bushnell v. Mott, 254 SW 3d 451 (Tex. Supreme Ct., 2008), the Supreme Court made it clear that liability on this ground can occur even if the requirements of the one bite rule and the negligence cause of action cannot be met.
Landlord liability
A landlord or landowner in this state can be held liable for failing to rid premises of a known dangerous dog. In Baker v. Pennoak Properties, Ltd., 874 S.W.2d 274, 277 (Tex. Ct. App. 1994) the Court of Appeals of Texas noted that "a lessor retaining control over premises used in common by different occupants of his property has a duty to exercise reasonable care to keep those common areas reasonably safe for the use of tenants and their guests." 874 S.W.2d at 275. This duty includes "protecting tenants from known vicious dogs." 874 S.W.2d at 277. The Baker court set forth a two-part test: "(1) the injury must have occurred in a common area under the control of the landlord; and (2) the landlord must have had actual or imputed knowledge of the particular dog's vicious propensities." Id.
Regarding landlord liability, see also Arlington Funeral Home v. Taylor, 474 S.W.2d 299 (Tex. Civ. App. 1971), in which the court assessed liability upon the operator of a funeral home when the plaintiff was bitten by a dog owned by the defendant's employee who lived, in effect, as a tenant, adjacent to the funeral home. The court held that the defendant could be held liable for the injuries because the defendant had the right to control the use of the premises. The house in which the employee lived, and where the attack occurred, was connected to the funeral home. The house, including all appliances and furniture, was furnished to the employee as part of his salary, and the utilities were paid by the defendant.
Bystander emotional distress
Texas permits closely related bystanders to recover for emotional distress per Dillon v. Legg, but does not allow any plaintiff to sue for negligent infliction of mental anguish. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). See Bystander claims for mental anguish in Texas.
Defenses
Texas permits a dog owner to mount a defense based on the comparative negligence of the dog bite victim. In a comparative negligence state, the damages awarded by the jury are reduced by the degree of the plaintiff's negligence. Therefore if the victim's own conduct was 10% responsible for the incident, for example, the victim's compensation will be reduced by 10%. The victim's negligence must be only 50% or less. T.C.P.R.C. sec. 33.001. The defense of comparative or contributory negligence is not recognized as to children 5 years and under unless there is proof that the child was conscious of the consequences of his actions.
It is important in such states, however, to apply the correct standard of care when determining the victim's degree of fault. The conduct of a child has to be judged by what a similar child would have done under the same circumstances - not what an adult would have done. "The question of the ability of the child to know, foresee, anticipate and appreciate the danger is a question of fact for the jury and should be submitted under appropriate instructions." Gottschalk v. Rudes (1958) 315 S.W.2d 361, 365. In that case it was held that a minor child is not to be held to the same standard of care as an adult, but rather the standard of care which is appropriate for "an ordinarily prudent child of the age, intelligence, experience and capacity of the child involved." (Id.)
Texas has abolished the defense of assumption of the risk, because of the comparative negligence statutes. Farley v. M. M. Cattle Co. 529 S.W.2d 751, 758 (Tex. 1975).
Criminal penalties for dog owners
Texas law imposes some of the nation's harshest penalties on the owners of vicious dogs, but the laws are rarely enforced. See the discussion of Lillian's Law and the case of Texas v. Hernandez (the Lillian Stiles Case) on this website.
