Victims of Dog Attacks: Your Legal Rights
A Survey of the Law
Strict Liability for Trespass
Negligence
Scienter
Special Rules
Defenses
A Survey of the Law regarding
Theories of Civil Liability for Damages Suffered by
a Person Injured in a Dog Attack.
As man learned to "tame" wild animals, and
then extended the benefits of taming, these animals
became domesticated. The Restatement Second of Torts
defines a domestic animal as "an animal that is
by custom devoted to the service of mankind at the time
and in the place where it is kept."
The process of domestication meant that animals which
had been "wild", and retained the instincts
of their wild ancestors, were in closer contact and
connection with man and his society. As with most other
interactions of society, man has made rules to regulate
those interactions.
For as long as man has had laws, he has made the owners
of animals responsible for the damage that those animals
cause. The Mosaic law, Solon's laws of Athens, and the
Roman Institutes of Justinian, for example, embodied
many of the principles that later evolved into the early
common law treatment of liability for the acts of animals.
Until recent times, most domesticated animals were used
for agricultural purposes. Common Law's provisions are
grounded in this agricultural use, with infrequent interaction
with "city dwellers". However, after the Industrial
Revolution and in the huge increase in the world's population,
farming has been relegated to a smaller sector of the
economy, range land was decreased, and the travel of
city dwellers through areas where wild animals still
occur has increased. These increasing exposure of people
to animals has continued the evolution of the laws which
relate to wild and domesticated animals.
At common law, there have been three theories of liability
asserted against the owners of animals to make the owners
responsible for the damage done by the animals.
Strict Liability for Trespass
The owner of an animal is strictly liable for the damage
arising from the animal's trespass on the land in possession
of the plaintiff, including damage to the crops which
are growing on the land. There is a statutory duty for
an owner to keep his animals from intruding onto another's
land, or he is responsible for the damage they cause.
Strict Liability for Injury Caused by Dangerous Animals
In an effort to protect the safety of people, society
has decided that the risk of harm from wild or dangerous
animals outweighs the social utility of the animal.
Therefore, the owner of an animal with known dangerous
propensities is strictly liable for the injuries which
the animal causes. The possessor of a wild animal is
strictly liable for harm arising from the dangerous
propensities characteristic of wild animals of its class,
whether or not the owner believes the animal is safe
or free from those propensities. The California courts
have recognized that wild animals are always considered
dangerous, and domestic animals are usually considered
harmless. However, if the owner knows that his domesticated
animal has "abnormally dangerous propensities",
with "dangerous" meaning "likely to inflict
serious injury", the owner is responsible for the
injuries caused by those abnormally dangerous propensities,
applying Restatement Second of Torts, Section 509.
Negligence
At common law, the owner or keeper of a domestic animal
is generally not liable for injuries inflicted by the
animal unless the injuries were the result of a vicious
propensity of which the owner had notice or knowledge.
Liability for foreseeable harm will be imposed only
after proof that the particular animal possessed a dangerous
propensity that caused the plaintiff's injury and that
the defendant had actual or constructive knowledge of
such propensity. The legal term for this knowledge is
"scienter". The main thrust of an action for
negligence in a dog attack case is the presentation
of evidence which is convincing to a jury or other trier
of fact that the defendant had scienter.
Scienter may be established
in several ways.
The most straightforward and persuasive proof of scienter
is establishing a history of the dog's prior attacks
or other injurious behavior which permits a reasonable
person to draw the inference that the dog is likely
to engage in such behavior again. The knowledge of such
behavior, if not actual, will be imputed to the owner
or keeper if, with the exercise of reasonable care,
he should have known of it. One or two prior bites,
however, may not be sufficient to establish a dangerous
propensity. The circumstances surrounding the occasion
of the biting and its extent demonstrate whether the
incident of the prior bite is sufficient to prove scienter.
For example, a dog caught in a door and consequently
frightened and in pain, may bite as a natural reaction
to his circumstances without exhibiting a vicious propensity.
A second method is to show actual or constructive
knowledge of a propensity or tendency of the animal
to act in a certain way under certain circumstances,
although no actual attack or injury ever occurred. Scienter
will be found when the owner or keeper has seen or heard
enough to convince a man of ordinary prudence or, at
least, to raise a reasonable inference of the animal's
inclination to commit the class of injury charged against
it. Thus, the old English common law maxim, "A
dog is entitled to a first bite," is no longer
true. For example, knowledge of change in a dog's temperament
from friendly and gentle to "ill-natured"
after a brief stay in a kennel is considered adequate
notice to the owner or keeper that, if not properly
restrained or confined, the dog will be likely to injure
someone.
A third method of establishing scienter is by the use
of circumstantial evidence, usually in conjunction with
the testimony of an expert trial witness to establish
the "commonly held" or "commonly understood"
dangerous propensities of the dog in question. Evidence
of the following is usually admissible to permit the
trier of fact to draw an inference of dangerous propensities
of the animal and/or the owner's or keeper's knowledge
of them:
- the animal's species or breed;
- its size;
- its reputation in the neighborhood;
- its training;
- the owner's purpose for keeping it, e.g., as a
watchdog;
- the length of time it was kept;
- the care exercised in its custody, e.g., chaining
or confining it to an enclosed area;
- the owner or keeper's warnings to others, whether
written or oral; and
- other unambiguous behavior of the defendant with
regard to the animal, such as always using a harness
or bridle when grooming a horse.
Finally, scienter may be imputed vicariously either
by the application of the "respondeat superior"
theory which, in part, holds that the knowledge gained
by an agent or servant while caring for the business
of the master or principal (such as the care or management
of the animal on behalf of the owner) is the knowledge
of his principal or master or, if applicable, by the
knowledge of one co-owner or keeper being imputed to
the other(s).
People or entities other than owners or "keepers"
can be held liable in a negligence action for a dog
attack. One example is a landowner who allows or permits
a dog owner or keeper to keep the dog at the landowner's
property. In California, this theory of liability arises
from a "premises liability" duty which the
landowner owes to people who may be injured by a "dangerous
or defective condition" on his property. In California,
a commercial (business property) landlord has a high
duty of care to inspect and discover the dangerous or
defective conditions on his property, and will be held
liable for the results of an attack of a dangerous dog
if there was any chance that he would have discovered
the dog's presence on the property. A residential landlord's
duty is usually not so high. In California, a residential
landlord must have actual notice or knowledge of the
dangerous propensity of the dog before the attack. Much
of the difference in the treatment between the two types
of landlords is explained by the ongoing right of a
landlord to inspect the premises and the retention of
control and power to force the tenant to change, correct,
or improve the condition of the premises, even if that
means the right to terminate the rental agreement and
regain possession of the premises.
The negligence liability arises from any type of dog
attack, even one which does not result in a "bite"
or "tearing" of the skin. In Drake v. Dean
(1993) 15 Cal.App.4th 915, 19 Cal.Rptr.2d 325, the Court
of Appeal upheld liability against a dog owner for injuries
caused when the dog jumped on plaintiff and knocked
her to the ground. Plaintiff suffered a broken hip and
lacerations to her head where it struck some rocks.
Special Rules Regarding the
Liability of Dog Owners: Strict Liability for Any Bite
Many states, including California, have adopted special
laws which have modified "common law" liability
rules relating to dog attacks. The California Legislature
has enacted a law, codified as Civil Code Section 3342,
which makes a dog owner subject to strict liability
for any dog bite attack. The elements of this action
are set out in the jury instruction which is read to
juries who decide dog attack lawsuits in California:
"... The essential elements of such a claim are:
- Defendant owned a dog;
- The dog bit the plaintiff;
- The plaintiff, at the time of the bite, was in a
public place or lawfully in or on a private place;
and
- The dog bite caused plaintiff to suffer injury,
damage, loss or harm.
The owner's liability for such a dog bite exists regardless
of whether the dog previously had been vicious, whether
the owner knew of such viciousness, or whether the owner
was negligent in respect to the custody or care of such
dog."
A California appellate court opinion has held that
the word "bite" does not require a puncture
or tearing away of the skin to cause a wound. The Court
held that a dog must have the plaintiff or plaintiff's
clothing in the grip of his closed jaws, and that this
"bite" must cause plaintiff injury.
Defenses
The claims of the injured plaintiff may be denied or
recovery diminished by the actions of the plaintiff
which are termed "assumption of the risk"
or "contributory" or "comparative"
fault. "Assumption of the risk" is a plaintiff's
voluntary participation in an activity or action which,
in the eyes of the law, means that the plaintiff has
waived any duty of due care that may be owed to him
by other people. Frequently, this absolute defense to
an action in negligence arises in the voluntary participation
in a sporting event. It might be applicable in a dog
attack case. More frequently, the defense of "contributory"
or "comparative" negligence may apply. This
is a negligence of the plaintiff which has contributed
to the injuries he has suffered. In most states, including
California, the jury may determine a "percentage"
of responsibility of the defendant and the plaintiff,
and will make the defendant responsible only for his
share of liability. In California, contributory negligence
applies in cases which are based in strict liability.
In California, "assumption of the risk" has
been applied to bar claims by dog handlers or veterinarians
who are bitten while caring for dogs or where a police
officer is bitten by a police dog operated by another
jurisdiction, but not other fact patterns.
The most common fact scenario in which contributory
negligence would arise is when the plaintiff has provoked
the dog into attacking him. Provocation is defined as
"Something that arouses anger or animosity in another,
causing that person to respond in the heat of passion."
When a plaintiff has intentionally excited or stimulated
a dog, he is partially at fault when the dog reacts
in a normal or expected manner. Many states have found
the following conduct as the basis of holding a plaintiff
as being partially or wholly at fault for a dog attack:
- Coming into Contact with the Dog;
- Touching;
- Striking;
- Petting, stroking, handling;
- Pulling or pushing the dog's chain or an object
in the dog's mouth;
- Hugging;
- Straddling or attempting to ride;
- Carrying;
- Kicking or pushing with foot;
- Stepping on or falling over;
- Throwing objects at;
- Spraying with a hose;
- Coming into the proximity of the Dog;
- Approaching the dog nearing a fence which is restraining
the dog, putting body parts through the fence;
- Approaching the dog in a yard, porch, or in a building;
- Mere presence in the home where the dog lives;
- Opening the door of the house with the dog behind
it;
- Encountering a dog on the street, either walking
or riding;
- Encouraging the dog to enter the plaintiff's own
house or yard;
- Other Actions directed at or near the dog;
- Waiving objects or hands;
- Getting involved in a dog fight;
- Attempting to restrain the dog;
- Shouting, yelling, stamping, jumping, staring at
the dog or the dog's owner;
- Interacting with the dog despite plaintiff's own
knowledge of the dog's vicious propensities or history
of prior bites.
ENDNOTES
- Restatement Second of Torts, Section 506(2).
- 1 Exodus 21:28-36
- 1 Plutarch's Lives of the Noble Greeks and Romans,
Solon, 403, 431.
- The body of law based on the English legal system,
as distinct from a civil-law (such as French) system,
often derived from judicial decisions, rather than
from statutes or constitutions.
- Holmes, Oliver Wendell, The Common Law 18-24 (1881).
- "Strict Liability" is defined as "Liability
that does not depend on actual negligence or intent
to harm, but that is based upon the breach of an absolute
duty to make something safe." Black's Law Dictionary,
7ed.
- "Trespass" is defined as "An unlawful
act committed against the person or property of another,
especially wrongful entry on another's real property."
Black's Law Dictionary, 7ed.
- Restatement Second of Torts, Section 507(2).
- Talizin v. Oak Creek Riding Club (1959) 176 Cal.App.2d
429, 1 Cal.Rptr. 514.
- Portello v. Aiassa (1994) 27 Cal.App.4th 1128, 32
Cal.Rptr.2d 755; Doncin v. Guerrero (1995) 34 Cal.App.4th
1832, 41 Cal.Rptr.2d 192
- Uccello v. Laudenslayer (1975) 44 Cal.App.3d 514,
118 Cal.Rptr. 741.
- Bar Approved Jury Instructions (B.A.J.I.), B.A.J.I.
6.67.
- Johnson v. McMahan (1998) 68 Cal.App.4th 173, 80
Cal.Rptr.2d 173.
- Daly v. General Motors Corp. (1978) 20 Cal.3d 725,
144 Cal.Rptr. 380
- Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 14
Cal.Rptr.2d 679; Prays v. Perryman (1989) 213 Cal.App.3d
1133, 262 Cal.Rptr. 180; Nelson v. Hall (1985) 165
Cal.App.3d 709, 211 Cal.Rptr. 668.
- Farnam v. State of California (2000) 84 Cal.App.4th
1448, 101 Cal.Rptr.2d 642.
- Drake v. Dean (1993) 15 Cal.App.4th 915, 19 Cal.Rptr.2d
325.
- Black's Law Dictionary, 7ed.
This list is derived from the article "Defenses
to Dog Bites" found at 11 A.L.R.5th 127. It is
important to note that not every state has found each
of these actions to be the basis of comparative fault:
an attorney will need to advise you on the facts which
have served as the basis for this defense in your state
of residence or where the dog attack occurred.
If you have been the victim of a dog bite or animal
attack, call now for a free legal consultation or click
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