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.
Legal Rights for Victims of Dog
Attacks
