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Civil Liability for Damages Suffered 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 domestication process 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 those aggressive animals cause. For example, the Mosaic law, Solon’s laws of Athens, and the Roman Institutes of Justinian 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 was relegated to a smaller sector of the economy, rangeland was decreased, and the travel of city dwellers through areas where wild animals still occur has increased. This increasing exposure of people to animals has continued the evolution of the laws that relate to wild and domesticated animals.
In common law, there have been three theories of liability asserted against the owners of animals to make them 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.
California’s 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
Under 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 its 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 a 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
- The dog’s 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
- 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 “respondent 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 the 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 law states: “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.”
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.
Dog Bite 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 within 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 the 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 on 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 the foot
- Stepping on or falling over
- Throwing objects
- 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 the plaintiff’s own knowledge of the dog’s vicious propensities or history of prior bites
ENDNOTES
- Restatement Second of Torts, Section 506(2).
- 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.
California Dog Bite Injury Lawyer Disclaimer: The California dog bite legal information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer or attorney-client relationship. Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Please contact a California dog bite attorney at our law offices.
