An owner will be financially liable for injuries caused by dogs under the following theories, not all of which will be available in every state:
Common Law Negligence
Recovery under negligence would require a showing that a legal duty was owed to the injured party, and the breach of that duty led to the victim’s injury. This duty can arise from failing to properly secure a dog, violating a city ordinance, such as a leash law, or leaving the dog with people unfit to control him.
Common Law Strict Liability
Generally, strict liability imposes financial responsibility on a person for all of his or her voluntary actions. However, under common law strict liability, an owner is made liable for any injury inflicted by his dog only if he or she knew or should have known that his or her dog was abnormally dangerous. All states allow common law strict liability claims.
Modern Day Strict Liability
More recently, due to the widespread publicity of dog attacks, about half of all jurisdictions have adopted a new cause of action called “modern” or “statutory” strict liability, which no longer requires the owner to have any previous knowledge about his dog’s vicious traits (Click here for a summary of states that impose statutory strict liability). Recovery under these dog bite statutes only requires four elements:
- injury caused by a dog owned by the defendant;
- peaceable conduct of the person injured;
- presence of the injured person in a place where he has the legal right to be; and
- lack of provocation.
Predicting whether a court will find a dog abnormally dangerous can be challenging given the variations of behavior among different breeds and can even lead to inconsistent results. For example, the Supreme Court of Colorado found that the owner was on notice that his German Shepard had vicious propensities based only on the fact that he would run to the fence and bark at people. Barger v. Jimerson, 276 P.2d 744 (Colo. 1954). However, an Alaskan federal district court held that plaintiffs had failed to show that Anchor, another German Shepard, was displaying abnormal behavioral responses after the defendants’ expert witness testified that each of four previous biting incidents was the result of the dog's natural instincts, such as reaction to overstimulation and protective and chase instincts. Sinclair v. Okata, 874 F. Supp. 1051 (D. Alaska 1994). Unlike the Barger court, the Sinclair court concluded that if the dog's response is natural, even if dangerous, it is not abnormal, and hence, the owners were not on notice.
Statutory Law: The “One Free Bite” Rule
Given the inconsistency of courts’ decisions on whether a dog is abnormal, many legislatures responded by passing statutes which imposed a "first bite" or "one free bite" rule. Under this law, a dog is only deemed abnormally dangerous, and the owner imputed with the requisite scienter, if the dog had bitten someone before. However, in reality, the rule was rarely applied in this black and white manner, and courts often concluded that a dog which had bitten previously was not dangerous, while dogs which had never bitten before were dangerous based on how sympathetic the victims were.
Statutory Definition of Abnormally Dangerous
Another way of dealing with the subjectivity of deciding whether a dog is abnormally dangerous is to statutorily define this term, which many states have done. For example, in California, a “potentially dangerous dog" is:
- any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner,
- any dog which, when unprovoked, bites a person, or
- any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner.
Cal.Food & Ag Code § 31601.
Defenses to Civil Liability
Under common law strict liability, the most common defense is to argue the owner had no knowledge of his dog’s viciousness. Given the difficulty of proving what the owner knew, this defense is often successful. This defense can also be used for negligence claims. For example, in Russell v. Rivera, 780 N.Y.S.2d 699 (N.Y. App. Div. 1st Dept. 2004), the plaintiff argued the owner was negligent in placing large cinder blocks next to the fence which allowed the dog to reach over and bite the plaintiff. Generally, plaintiffs in a negligence claim must prove "a distinct, enhanced duty required by the particular circumstances." Id. at 701. Yet the court found no heightened duty precisely because the dog had exhibited no vicious tendencies in the past.
However, negligence, unlike common law strict liability, does not require proving the owner’s knowledge of his pet's dangerous traits. As a result, in some cases, asserting that the owner did not know of his dog's vicious propensities will not be effective. For example, in Drake v. Dean, 19 Cal. Rptr. 2d 325, 335 (Cal. App. 3d Dist. 1993), a Jehovah's Witness was knocked to the ground as she walked up the owner’s driveway by Bandit, who was leased to a one-hundred-foot guy wire. Because several witnesses testified that Bandit was a well-behaved, gentle animal, the jury returned a verdict in favor of the defendant on the strict liability claim. However, the appellate court held it was error to dismiss the negligence claim, because the owner could have reasonably anticipated his dog could cause harm, even if the dog did not possess dangerous propensities. The jury should have been asked whether the owner had failed to exercise ordinary care by putting Bandit on such a long leash.
In contrast to negligence and common law strict liability, the main defense under modern strict liability laws is provocation (other defenses vary by state and can include that the victim was a trespasser, a veterinarian or canine professional, was committing a felony or other crime against the owner of the dog, assumed the risk, or was injured while the dog was assisting the police or the military). However, establishing provocation can be difficult, because the term is rarely defined by statute. Some courts, like the Illinois Appellate Court, will rely on everyday usage as described in Webster's Dictionary ("an act or process of provoking, stimulation, or incitement"), Nelson v. Lewis, 344 N.E.2d 268 (Ill. App. Ct. 1976), yet other courts reject dictionary definitions as too expansive and dog owner friendly, contradicting legislative purpose in enacting tough new laws. Lynn A. Epstein, There are no Bad Dogs, Only Bad Owners: Replacing Strict Liability with a Negligence Standard in Dog Bite Cases, 13 Animal L. 129, 135 (2006). Because these courts are then left without any clear instruction to give juries, verdicts tend to be subjective and random, because jury members give human interpretations to the term “provocation.” Id. at 136.
For example, in Brans v. Extrom, 701 N.W.2d 163 (Mich. App. 2005), the jury found that the plaintiff’s accidental stepping on an elderly dog, although unintentional, constituted provocation. In contrast, in Wade v. Rich, 618 N.E.2d 1314 (Ill. App. 5th Dist. 1993), a child’s accidental fall on top of a sleeping dog was found not to constitute provocation. The only explanation for these contradictory results is that in the former case, the dog bites were minor, while in the latter, the child was repeatedly bitten on the face and head.
Violation of Local Ordinances
Dog owners may also be civilly liable when injuries occur, because they have violated local ordinances, the most common being leash laws. Plaintiffs will usually have an easy time prevailing on a negligence claim because owners have a duty to follow laws and obviously violated that duty by leaving their dogs off leash. In these instances, however, owners can argue a comparative negligence defense in situations where the victim may have been more at fault than the owner, such as if the victim was guilty of provocation or extreme carelessness.
When is it better to bring a negligence versus a strict liability claim?
Negligence claims based on failure to supervise are difficult to win because comments to the Restatement, which many jurisdictions follow, state that there is no general duty to keep dogs under constant control given they are unlikely to inflict substantial harm. However, negligence claims offer a great advantage in comparison to common law strict liability in that victims can prevail without proving the owner knew or should have known about his dog’s vicious traits. In states which have instituted modern strict liability, though, a negligence claim would usually be unnecessary.