Dog Owner Liability
In most instances, dog owners are financially liable for any personal injury or property damage their pets cause. Three kinds of laws impose liability on owners:
- A dog-bite statute. Many states have laws that make a dog owner legally
liable for any injury or property damage the dog causes. Although
commonly called "dog-bite statutes," most of these laws cover all kinds
of dog-inflicted injuries, not just bites. The dog owner is automatically
liable if the statute applies.
Example. Barbara lives in Minneapolis with her spaniel-mix dog, Ray, who has always been gentle with people. But one day, while on a leash, Ray unexpectedly bites a child in a park. Barbara wasn't being careless, but under her state's law, she's financially liable because her dog, without provocation, bit someone who was "acting peaceably" in a place he had a right to be.
- The one-bite rule. This misleadingly named rule makes an owner legally
responsible for an injury caused by a dog if the owner knew the dog was
likely to cause that type of injury - for example, that the dog would bite.
The victim must prove the owner knew the dog was dangerous.
Example. A New Jersey man was scratched by a dog. He sued and won, based on the one-bite theory, because he proved that the dog's owner knew of the dog's tendency to jump up and scratch people.3
- Negligence laws. If the injury occurred because the dog owner was
unreasonably careless (negligent) in controlling the dog, the owner is
Example. Lucy puts her new dog, Zippy, in the back yard but forgets to close the gate. The dog runs out into her front yard and bites the mail carrier. Lucy didn't know the dog would bite. But because her negligence - leaving the gate open - caused the injury, she is liable.
The rest of this section discusses each of these theories in more detail.
More than half the states have statutes that make dog owners liable if their dogs cause injury. Although commonly called dog-bite statutes, many of these laws cover all kinds of dog-inflicted injuries, not just bites. They are called "strict liability" statutes because they impose liability without fault - that is, an injured person does not have to prove that the dog owner did anything wrong. (The only exception is Hawaii, where an injured person must still prove the dog's owner was unreasonably careless.)
The theory behind these laws is that anyone who has a dog should be responsible for any damage it causes, period. It doesn't matter that the owner was careful with the dog, or didn't know it would hurt anyone, or conscientiously tried to keep it from injuring anyone.
For example, the Minnesota dog-bite statute says:
If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.
The victim doesn't have to show that the dog owner did anything wrong. To win a lawsuit under this statute, an injured person must, however, prove four things:
1. The injured person was attacked or injured by a dog. This doesn't
necessarily require physical contact; if a dog runs at and frightens
someone, causing him to injure himself, the statute still applies.4
2. The person being sued (the defendant) is the owner of the dog.
3. The victim didn't provoke the dog to bite.
4. The victim was acting peaceably somewhere he or she had the right to be.
DOGS ON DUTY
Many states exempt the police or military from liability if their trained dogs bite someone while they're working. So someone who is injured by an on-duty police dog may not be able to sue the police or city government successfully. Several states (Arizona and California, for example) limit this immunity from lawsuits to situations in which the government agency in charge of the dog has a written policy on proper use of its dogs.5
Some police departments are averting these issues by training their dogs to bark, not bite. This tactical shift has been spurred by lawsuits brought by the ACLU and other organizations, claiming that training dogs to "find and bite" suspects is an excessive use of force.
In 1995, the Los Angeles Police Department settled such a suit out of court for $13.7 million. It no longer trains its dogs to bite when they track down a fleeing suspect.
An award that large is very rare. In 2000, a federal jury in Massachusetts found that the Yarmouth police had used excessive force when Jerome Jarrett, who fled after being stopped for driving without a license or insurance, was chased and bitten by a 90-pound police dog. But the jury gave Jarrett just $1 in damages. (He did, however, get $50,000 to pay his lawyer's fees.)
The dog's owner may still be able to escape liability by proving what is called an "affirmative defense." (See "A Dog Owner's Legal Defenses," below.)
Now here's a different type of statute, this time from Arizona:
24-521 Liability for dog bites
The owner of a dog which bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog, is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of its viciousness.
24-523 Provocation as defense
Proof of provocation of the attack by the person injured shall be a defense to the action for damages.
To win under this statute, the injured person must prove three things:
1. The victim was bitten (other injuries aren't covered by the statute) by a
2. The person being sued (the defendant) is the owner of the dog.
3. The victim was in a public place or lawfully on private property when bitten.
Because many dog-bite statutes, like this one, are limited to injuries from bites, they don't apply when the injury is caused by a dog acting playfully. For example, take the case of a German shepherd puppy that sat down in front of a three-wheeled recreational vehicle being driven by a teenage girl. She swerved to avoid the dog and hit a barbed-wire fence. The Nebraska Supreme Court ruled that the state's dog-bite statute did not make the dog's owner liable for the injury, because the statute covers only injuries caused when a dog bites, kills, wounds, worries, or chases a person.6 (A dissenting justice wrote that it was impossible for a juror or judge to know whether a dog's conduct was malicious or playful: "we could, with equal reliability, predict the future from the examination of a goat's entrails," he wrote scornfully.) In another case based on the Nebraska law, a court ruled that dog owners were liable for injuries caused when their dog chased a motorcycle, causing an accident.7
In almost all states, dog-bite statutes don't affect the other rules of liability. That means someone who is injured by a dog and sues the owner has a choice of suing under the statute, if it applies to the situation, under a common law theory (and having to prove the owner knew the dog was dangerous), or on a negligence theory. For example, in a Minnesota case, a dog, distracting the driver of a car, caused an accident that killed a young boy. The dog had not "attacked or injured" the boy, the state supreme court ruled, so the state's dog-bite statute did not apply. The boy's family could, however, sue under a negligence theory, and try to prove that the dog's owner had not taken reasonable care in controlling the dog.8
THE POSTMAN ALWAYS SUES
The U.S. Postal Service, whose mail carriers are plagued by dog bites, is fighting back. Its dog-bite awareness program, aimed at getting owners to keep their pets from bothering mail carriers, has reduced bites to about 3,000 per year. The Postal Service also encourages its carriers to sue if they're bitten.
The Common Law "One-Bite" Rule
Under the common law rule, a dog's owner or keeper is liable for injuries the dog causes only if the owner knew or had reason to know that the dog was likely to cause that kind of injury. So if your dog tries to bite someone, from that moment on you're on notice that the dog is dangerous, and you will be liable if the dog later bites someone.
The common law rule comes into play only if the state has no dog-bite statute or if the statute doesn't apply - for example, if the statute covers only bites, and the dog caused the injury by knocking the person down.
A dog owner may be able to escape liability by proving that the injured person provoked the injury, or voluntarily and knowingly risked being injured by the dog. (See "A Dog's Owner's Legal Defenses," below.)
|ONE-BITE RULE ONLY|
*But see the section on Negligence, below.
The logic of this legal doctrine is straightforward, if not unquestionable. This rule allows a person who owns a dog to assume, until there is some concrete indication to the contrary, that the dog isn't dangerous. But an owner who knows a dog poses a particular kind of risk to people must take action to prevent the foreseeable injury - or be prepared to pay for it.
The common law rule is often called the "one-bite" rule, which is a bit of a misnomer. It implies that every dog gets one "free" bite (free for its owner), and from then on the owner is on notice that the dog is dangerous. It's true that if a dog bites someone, its owner is definitely on notice that the dog is dangerous; but less serious behavior is also enough, legally, to give the owner the knowledge the law looks for. For example, if a dog growls or snaps at people, the owner knows (or should know) that the dog may cause injury. If the dog does hurt someone, the owner will be liable, even for the first bite.
The test for liability is the same no matter how the injury was caused: Did the owner know of the dog's dangerous tendency? For example, if a dog jumps up and knocks someone down, the question is: Did the owner know of the dog's tendency to knock people down? If so, he's liable for it.
If the owner denies responsibility and the dispute ends up in court (most don't), the judge or jury will have to decide whether or not the owner should have known the dog was likely to hurt someone. Here are some factors that courts take into account when deciding:
- Previous bites. This one is pretty easy. If a dog bites once, the owner will forevermore be on notice that the dog is dangerous. But even this is not as straightforward as it may appear; for example, at least one court has ruled that if a puppy nips someone, its owners are not necessarily on notice that the dog is dangerous.10
- Barking at strangers. If a dog, usually kept in the house or a fenced yard, barks when the doorbell rings but has never threatened a person, its owners will probably not be liable if it bites someone.11
- Threatening people. A dog that often growls and snaps at people who come near it when out in public, but hasn't ever actually bitten someone, is a different case entirely. The dog's actions should put its owner on notice that the dog might bite someone. If the dog does bite, the owner will be liable.12
- Jumping on people. The owner of a friendly, playful, and large dog, which is in the habit of jumping on house guests, will be liable if the exuberant dog knocks over an elderly friend who comes to the door one day. The owner knew that the dog behaved this way and might injure someone because of its size.
- Frightening people. If a dog likes to run along the fence that separates his yard from the sidewalk barking furiously, or chases pedestrians or bicyclists, the owner may be liable if the dog causes an injury.13 At least one court, however, has ruled that an owner wasn't responsible for foreseeing that a barking dog could frighten someone so much she
- Fighting with other dogs. If a dog that is affectionate and gentle with people has a history of fights with other dogs, that's probably not enough to put the owner on notice that the dog might bite a person. Courts usually recognize that canine society has its own rules, and the way a dog behaves under them isn't a reliable predictor of how it will act toward humans. (As one court put it, the "question was the dog's propensity to attack a human. The canine code duello is something else. That involves the question of what constitutes a just cause for battle in the dog world, or what justifies a resort to arms, or rather to teeth, for redress."15)
- Fight training. If a dog has been trained to fight, a court will almost certainly conclude that the owner should have known that the dog is dangerous. (This conclusion is disputed by at least some people familiar with breeds commonly used for fighting, who maintain that there is no connection between a dog's drive to fight other dogs and its aggression toward people. However, a dog that has been agitated and abused by someone who wants the dog to fight may well be dangerous.)
- Complaints about the dog. If neighbors or others complain to the owner that a dog has threatened or bitten someone, the owner would certainly be on notice that the dog is dangerous. But in one Alabama case, where a dog's owner had been scolded by a neighbor for having a dog that was a "nuisance," the court ruled that the owner did not have any knowledge that his dog was dangerous.16
- The dog's breed. Generally, courts don't consider dogs of certain breeds to be inherently dangerous. So if you have a German shepherd, a court probably won't conclude that you should have known, just because of the dog's breed, that it might injure someone.17 But in some places, pit bulls, rottweilers and a few other breeds have been defined by law as dangerous dogs (See Dangerous Dogs). But remember that if a dispute goes to court, the result will depend on the facts of the case and the judge or jury's attitude. Large dogs of breeds popularly believed to be dangerous, such as Dobermans, German shepherds, and pit bulls, may be judged more severely than dogs of cuddlier breeds.
- Warning signs. Don't worry that putting up a "Beware of Dog" sign is tantamount to admitting that your dog is a menace, landing you in bigger trouble if the dog does ever hurt someone. First of all, the sign will help avoid bites - which is far preferable than winning a legal battle over a bite later. Second, if you think your dog might hurt someone, there's almost certainly already more evidence of the dog's dangerousness than the fact that you put up a warning sign.
Judges often say that, to be liable under the common law rule, an owner must have known the dog was "vicious" or had a "vicious propensity." The term, as it's used in this context, simply means dangerous - likely to hurt someone, even if by being overly friendly. It has nothing to do with a dog's temperament.
The Dog Owner's Negligence
Negligence is the third legal doctrine under which a dog owner may be found liable for injuries caused by a dog. A dog owner who is unreasonably careless (negligent) in handling a dog may be legally responsible if somebody is hurt as a foreseeable result.
When it comes to defining negligence, broad rules are of little help. Whether or not someone acted negligently is a question that must be resolved based on the facts of a given situation. It comes down to this question: Did the dog's owner act reasonably, under the circumstances? If so, the owner wasn't legally negligent.
Here are a few examples of how courts have come down on the negligence issue in specific cases:
- A dog is chained in the unfenced front yard, so that it can't reach the sidewalk, and a "Beware of Dog" sign is posted. Someone walks up to the dog and gets bitten. Ruled: The owner was not negligent. Confining the dog inside the owner's property and posting a sign are reasonable precautions against someone being injured.18
- A house guest, searching for the bathroom, is frightened when she hears the hosts' dog growl, and falls down a flight of stairs. The dog was behind a gate in the laundry room, across the hall from the bathroom. Ruled: The owners were not negligent; they took reasonable precautions and were not liable for the injury.19
- A dog owner lets his dog loose in his yard, and the dog runs at a bicyclist riding by. Trying to avoid the dog, the cyclist is thrown from his bicycle and suffers permanent hearing loss. Jury verdict: The dog's owner was negligent.20
- A dog owner lets his dog loose in his yard, and the dog runs into the street and hits a motorcycle, seriously injuring the riders. Ruled: Because the dog did not have a history of chasing vehicles, the dog owner was not negligent.21
It's also possible that a dog owner will be found negligent for not taking special precautions to prevent a dog of a certain breed from causing injury. In at least one case, a court ruled that dog owners were responsible for an attack by their rottweiler, even though they had no knowledge that the dog would be dangerous. (The case was in North Carolina, which has no dog-bite statute and generally follows the one-bite rule.) The court ruled that the owners were negligent because they should have known the "general propensities" of rottweilers, which an expert witness at trial had described as very strong, aggressive, and unpredictable.22
If a dog owner violates a law, and the violation leads to an injury, the owner may be negligent as a matter of law. In such cases, the injured person can win a lawsuit by proving only that dog owner violated the law. The most common scenario is when a dog owner violates a local leash law by letting a dog run at large, and the dog bites someone or causes an accident.23
Example. A California man let his dog roam, in violation of a local leash law. The dog ran into the road, and a pickup truck crashed trying to avoid it. Two men riding in the back of the truck were thrown out; they suffered serious permanent injuries.24 A judge ruled that the dog owner's violation of the leash law was negligence, and awarded the injured men $2.6 million. (The dog owner's insurance company ended up paying the whole amount, even though the owner's policy limit was $100,000. See the section on Liability Insurance, below.)
Violation of a law does not always mean instant liability for any injury that occurs as a result. For example, the owner of a Los Angeles hardware store violated a local ordinance requiring property owners to keep their sidewalks clean. As a result, a 70-year-old woman slipped on some dog droppings on the sidewalk and seriously injured herself. She sued the store owner. A jury found the owner 85% responsible for the accident and ordered him to pay $402,050. On appeal, a court ruled that the store owner's violation of the ordinance did not necessarily mean he was negligent. The ordinance was not intended to make property owners keep sidewalks safe for passers-by, the court ruled; it was intended only to transfer to property owners the city's responsibility to keep public sidewalks clean.25