"Rover just bit the neighbor kid who was poking him with a stick. Am I liable?"
This question really asks two things that depend on your state's law. First, does every dog get "one bite" as the saying goes? And, second, was the dog provoked into biting the child? While most of the time an owner must have prior knowledge of the dog's tendency to bite, some states have enacted laws that make an owner liable for any bite regardless of the owner's knowledge (called, "strict liability" laws). In most dog bite cases, the issue of an owner’s knowledge is central. But, even in states with strict liability laws, the intentional provocation of a dog will excuse an owner's liability.
Dog attacks and bites have become media staples. While some may argue this does not necessarily result from an actual increase in the number of dog attacks, but is rather an example of our sensationalized media-driven society, the tragic results are the same. Many people, particularly young children, are injured or even killed by dogs of every breed and size each year.
Of course, the question then arises, who is at fault (liable) for the injuries sustained and under what circumstances? This question depends on two areas of law: common law tort principles and state statutory law. It is the intersection of these two bodies of law that literally determines who pays.
Liability can be based on a common law theory of negligence of the owner where recovery is based on the action or lack of action by an animal owner /keeper. Common law is the law derived from court decisions and historical traditions rather than explicit statutory provisions. Recovery at law under this concept requires a showing by the injured party that there was a legal duty owed to the injured party by the animal owner /keeper and that the injury arose because of a breach of that duty. This duty can arise from a failing to properly secure an animal or entrusting the animal with someone unfit to restrain the animal. It can also arise independently from violating a local ordinance, such as those ordinances that prohibit dogs running at large or mandatory muzzling provisions. It has been said that one who keeps a vicious dog, with knowledge of its savage and vicious nature, is presumed to be negligent if he or she does not keep the animal secure from injuring others.
A court may consider several questions when deciding whether an owner is negligent:
Was the action of the animal with the category of “dangerous” activities from which the law seeks to protect the general public?
Had the animal in question shown a previous propensity (pattern) to engage in this conduct?
Did the defendant have actual or constructive knowledge (knowledge based on other surrounding circumstances) of the animal’s propensity?
Did the animal’s dangerous conduct cause the harm?
The necessity of showing a prior propensity or tendency exist because the lawmakers (judges or legislature) believe that, in fairness, the owner of an animal should not have legal liability for the actions unless there is notice of the likelihood of the dangerous activity. This gives the owner the opportunity to do something about controlling the risk the animal represents.
States may also impose a more stringent standard of fault called strict liability. In those states, liability automatically arises when a domestic animal has a known vicious propensity attacks, bites, injures, or even chases someone. There is no necessity to show that the owner was negligent in his or her actions in proving liability. (Click here for a summary of states that impose strict liability). In addition, owners may face liability based on the legal category of the dog him or herself.
Nearly all states have some laws that govern what can be termed “dangerous dog” or “vicious dog” laws. These laws outline what constitutes a “dangerous dog” or even a “potentially dangerous dog” and under what circumstances an owner will be liable for the actions of such dogs. Moreover, some states impose what is called “strict liability” on dog owners for any injury resulting from a dog deemed dangerous regardless of any knowledge of the dog’s tendencies. These strict liability laws may also limit the ability of the owner to claim a defense to the action. In other words, the law may state that the owner is liable regardless of whether the person who was bitten was trespassing on the owner’s property or whether the owner knew the dog was vicious.
Regardless of whether you are dealing with a strict liability state or not, provocation will be an important factual issue. Provocation simply refers to a situation where a dog is incited, encouraged, or provoked into biting a person. In states where there is strict liability, an owner may use provocation as a defense to the dog bite. This will either reduce the owner's liability based in part (comparative or contributory negligence on the part of the victim) or bar the victim's claim completely. A court will either determine provocation from the perspective of the injured party (i.e., did the person intend to provoke the animal or have knowledge that his or her actions would provoke the animal) or from the perspective of the dog. A person who knows that his or her actions will be painful or annoying to the dog is deemed to provoke the dog. Likewise, any actions that cause fear or pain from the dog's perspective are sufficient provocation. Some statutes with strict liability bar actions where a person has provoked a dog (See Michigan and Montana for example).
The answer to the initial question concerning the child poking the dog would likely be viewed as sufficient provocation. The child intentionally poked the dog knowing that it would cause pain or annoyance to the animal. The dog him or herself experienced both pain and fear that caused him or her to react defensively. There is one caveat to this issue, however. If the child was sufficiently young enough (under the age of four), a court may find that he or she could not form the requisite intent for provocation.
Of course, cynics may argue that the real focus of dog bite laws is neither the dogs nor the injured but rather juries and deep pockets. It often seems like the jury (and sometimes judges) believe that someone should pay for the injury, for the human pain and suffering. If the owner does not have money, juries will reach out and touch someone else, usually a landowner or landlord who would be expected to have insurance to cover the losses. Regardless of the reason, owners and victims alike should be aware of the legal issues and potential liability arising from what is sometimes just one bite.
[Dog Bite Detailed Discussion]