In the end, even strict liability courts show some love for Fido, “keeping a pet dog is one of the most cherished forms in which the constitutionally protected right to own personal property is exercised.”^[4]

One Bite Rule

Under the “one bite rule,” an owner cannot be considered to have sufficient knowledge of her dog's propensity to bite a person unless the dog had actually bitten a person on a previous occasion. The theory is that the incident would lead an owner to anticipate that the dog could later bite in a similar manner. This also places an additional burden on claimants to prove the owner had some knowledge of a dog's dangerous behavior.

Georgia is a prime example of a “one bite” state. There, dogs are presumed to be harmless. Georgia has a three-part test for establishing liability: “a plaintiff must show that (1) the owner [or keeper] carelessly managed or allowed the animal to go at liberty; (2) the animal was vicious or unrestrained at the time of the injury in violation of a local ordinance requiring such restraint; and (3) the animal caused injury.”^[5] Even instances of prior attacks on other animals are generally insufficient to put the owner on notice of the dog's propensity to attack people. However, such evidence may be used to show the owner was aware of the dog's temperament and subsequent notice that a dog may bite a person.

Both forms of liability impose some burden on a dog owner to handle his or her pet in a responsible manner. However, liability is not absolute and the injured person is not relieved from his or her duty to act reasonably.

But He Started It!

A majority of states recognize defenses to dog bite liability, even those that impose strict liability. Provocation is the most common defense. When the person bitten mischievously or carelessly provoked or aggravated a dog, the owner is not responsible for damages caused when the dog reacts accordingly. In fact, if the aggravation is too extreme, the claimant may be on the hook for animal abuse or neglect.

However, this defense is not absolute. The provocation must be more egregious than simply patting Fido's head. For example, in Minnesota, mere contact with a dog, such as petting or trying to excite the dog, is not sufficient to establish provocation.^[6] If your dog bites someone that is petting him, you're still on the hook. But the court went on to say, if the person should have known not to approach the dog based on its behavior, he or she may have assumed the risk of being bitten.^[7] As a general rule, courts are mixed as to assumption of the risk defenses.

Trespass is another common bar to recovery. States, such as Delaware, bar all recovery if a person is bitten while committing trespass or any other criminal act.^[8] Similarly, some other states require lawful presence as an essential element to recover on a dog bite claim. To establish liability in Illinois, a person must be bitten while “peaceably conducting himself or herself in any place where he or she may lawfully be.”^[9] So next time Fido wards off an intruder, you can rest easy knowing you're safe from harm and liability in most states.

A few courts place a heightened burden on dog owners to establish defenses when a minor is involved. In Connecticut, “If a minor, [who is a claimant] was under seven years of age at the time such damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog….”^[10]

Believe it or not, the “Beware of Dog” signs provide protection in a few states. In Colorado, a dog owner is not liable to a person who is injured or killed by a dog “while the person is on property of the dog owner and the property is clearly and conspicuously marked with one or more posted signs stating 'no trespassing' or 'beware of dog.'”^[11] Florida has a similar law. Of course, the conspicuity of the sign is the next hurdle to jump in such cases.

Hey, Let's Toss The Working Class A Bone

Military and police dogs are often exempt from liability statutes when on the job. This is essentially an extension of government immunity. However, some states extend this same protection to additional classes of working pups. In Idaho, an owner is not liable when “the dog was working as a hunting dog, herding dog or predator control dog” while under the control of its owner.^[12] However, this only applies if the person bitten “interfered” with the dog's work.^[13] The same protection is extended to service dogs trained to assist an individual with disabilities.^[14]

Additional Avenues For Establishing Liability

It is important to note that states often have additional laws that may provide a basis for recovery, such as premises liability. However, many of the same principles will apply when analyzing these claims. For example, a property owner in Georgia is liable “where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care….”^[15] Inherent in establishing a failure to exercise care, a claimant is “required to produce evidence of the vicious propensity of the dog in order to show the dangerous condition of which the premises owner had superior knowledge.”^[16]

Another avenue to recovery may also be the violation of a leash law. If the city or other locale in which the dog is located has a law or ordinance requiring the dog to be on a leash, then the owner may be “negligent per se” in allowing the dog to be off the leash, resulting in an imposition of liability.

As a practical matter, it is important to know your state's law on double recovery. Some states restrict a claimant's ability to recover for the same damages under two separate theories of recovery. By narrowing the claims in a lawsuit you are able to restrict discovery and move the case forward more efficiently.

So What's The Damage?

The most common award in dog bite cases is monetary damages for medical bills incurred by the bite victim. These damages will be assessed according to each state's law. In some circumstances, a claimant may be entitled to money for pain and suffering caused by the dog, as well.

However, damages may also extend to personal property damaged by a dog. In Hawaii, an owner of a dangerous dog is liable for any property damage caused by that dog.^[17] Typically in litigation, property damage comes in the form of car crashes, house fires, or damaged possessions. While Fido might be on the hook for finally catching that car tire, the property damages anticipated by these statutes is harm to other animals. Animals are considered personal property in the eyes of the law. A few examples might include a dog attacking another dog or chasing and injuring livestock. The value of these claims is often limited to any veterinary bills resulting from the attack, along with the value of the lost animal, if it was killed in the incident. In states such as Georgia, an animal's value is the cost of replacement. So, a prized race horse may be worth millions, while the dog who is considered a member of the family may be worth only a nominal amount—unless that family dog is also a purebred show dog.

What Can Courts Do Beyond Awarding Monetary Damages?

Some states provide courts with the ability to impose additional restrictions on dog owners. In Colorado, a court may order that the dog be euthanized at the expense of the owner. After a dog is determined to be dangerous in New York, it must be spayed or neutered and micro-chipped. In addition, the court may order the dog be evaluated by a behaviorist, confined (humanely of course), leashed by a person 21 years or older while in public and/or muzzled while in public, or the court may require the owner to carry liability insurance in an amount determined by the court.^[18]

Conclusion

In sum, pet owners must act responsibly and keep their dog restrained in public places. As an owner, it is important to know your dog and his or her behavioral habits. As an insurer, it is important to know the pets a potential client owns and understand the potential implications a dangerous dog may have on exposure. In assessing a dog bite case you must consider whether the state recognizes strict liability or the one bite rule. If it is a one bite state, you must determine the prior behaviors of the dog. Obtaining an affidavit from your insured as to the dog's prior behavior may be beneficial to confirm if the dog has never exhibited dangerous behavior. Next, you should gather all of the facts surrounding the incident, such as whether the person was ever around the dog before, whether the claimant was trespassing, whether the dog was restrained, whether the dog was provoked or aggravated, whether it was a service or working dog and the total damages claimed. The answer to these questions will help you analyze potential exposure and liability. Most importantly, if you are ever faced with a dog bite claim, be sure to consult a local attorney to analyze your options.

Endnotes

[2]. Cal. Civ. Code § 3342(a).

[3].        Lopez v. Trujillo, 2016 COA 53, 399 P.3d 750.

[4].        Id.

[5].        Cowan v. Carillo, 331 Ga. App. 387, 389 (2015).

[6].        Engquist v. Loyas, 787 N.W.2d 220 (Minn. Ct. App. 2010).

[7].        Id.

[8]. 16 Del. C. § 3053F.

[9]. 510 ILCS 5/16.

[10]. Conn. Gen. Stat. § 22-357.

[11]. Colo. Rev. Stat. § 13-21-124.

[12]. Idaho Code § 25-2810.

[13].      Id.

[14].      Id.

[15]. O.C.G.A. § 51-3-1.

[16].      Stennette v. Miller, 316 Ga. App. 425, 429 (2012).

[17]. Haw. Rev. Stat. Ann. § 663-9.

[18]. N.Y. Agric. & Mkts. Law § 123.