Dog bite law is far more complex than might be indicated by the old cliche that "every dog is entitled to one free bite." It is a unique combination of city and county ordinances, state statutory law, state case law, and common law. There are many possible grounds for liability.
It is important to plead all of the possible grounds prior to the expiration of the statute of limitations. Even in a statutory strict liability state, one must plead negligence and common law strict liability in addition to the statutory cause of action. Doing so will eliminate the possibility of a defense verdict based on non-ownership of the dog, a non-qualifying means of injury (i.e., scratching rather than biting), etc.
Attorneys should always prepare a memorandum of law in dog bite cases. Start by reviewing your state dog bite statute (most states and the District of Columbia have them). Most of these statutes impose strict liability on the owner of a dog that bites, without the need to prove negligence or that the dog has bitten someone before. Most strict liability statutes apply just to the dog owners and do not mention the measure of damages, but some go further, extending strict liability to whoever had custody of the dog when the attack occurred and providing additional compensation if the dog previously bit a person. Several states have statutes that combine concepts of negligence, common law strict liability, and violations of local law. Be sure to research the exceptions to liability, which might include "provocation," trespass, signage, a non-qualifying degree of injury, a non-qualifying time of day, and more.
One of the most overlooked grounds for liability is negligence per se based on violating a local public health and safety law such as a leash law, dog trespass law, or prohibition against dogs running at large. In states that do not have strict liability statutes, a violation of local law often is the only ground for liability. If you have to rely on this type of cause of action, research key terms such as "dog, bite, negligence, negligence per se, class" (the reason for "class" is that the court decision usually mentions the fact that the victim is a member of the class of persons intended to be protected under the animal control statute, which is an element of negligence per se liability). Remember that in some states negligence per se equals negligence while in others it is simply evidence of negligence.
Pleadings, interrogatories, deposition questions, and other documents must cover all of the applicable causes of action, loopholes in the one-bite rule and the dog bite statute, and affirmative defenses such as trespass, committing a crime, etc. There also are special pleading requirements in most states, such as when a child is of tender years. To avoid missing something important, download a copy of Attorney Kenneth M. Phillips' Dog Bite Lawsuit Forms. If your case is in California, get The Undemurrable Complaint and Supporting Authorities too.
