by Sara Chisnell-Voigt, Esq.
While none of us like to think about our dogs potentially causing injury to others, it is sadly a common occurrence and a possibility to any dog owner. Owners should be aware of potential legal ramifications, especially with the potential for expensive civil lawsuits.
States are widely varied as to criminal penalties. This article focuses on civil actions, or lawsuits, and liability on the part of dog owners. When a dog causes an injury to a person, most often the lawsuit filed is the tort action of negligence against the owner or keeper of the dog; whoever was responsible for, in charge of, or in control of the dog. In order to institute an action for negligence, the injured person must prove that the dog owner or keeper:
- owed them a duty to prevent injury,
- breached that duty (meaning they did not do what was necessary to prevent injury), and
- because of that breach the injury occurred.
On closer examination, a dog owner can breach their duty to others in a few different ways. One can be from improperly restraining or confining their dog. This can happen by letting a dog run loose, or not properly maintaining control over the dog. Another possibility is negligent entrustment. This would be a situation where the owner puts the dog in the hands of someone who is incapable of properly handling the animal, such as a young child, or one not strong enough to maintain control. An owner can also breach their duty to others by violating local ordinances or state laws, such as leash laws or ordinances dealing with animals running at large. Also, the duty may be breached if the owner has knowledge of the dog’s propensities, such as aggressiveness or excitability, and fails to warn others of these propensities.
Vicious or aggressive propensities often lead to strict liability. Strict liability means liability without fault, even if where the utmost care is exhibited by the owner. The main consideration in injury cases is whether the dog in question has committed acts prior to the incident, and if the owner knew or should have known of the act or acts. What this means is, even if the owner or handler doesn’t have personal knowledge of bites or aggressive behavior, but, for example, they have been warned by others of an incident or a potential threat, this is legally considered knowledge of the dog’s propensities. In states with strict liability, that is all that is needed for injured persons to prove for injuries caused by dogs with vicious or aggressive propensities, even if there has been no negligence or wrongdoing on the part of the owner. However, the prior history or incidents must be relevant to the injury in question. In other words, the dog’s behavior that causes the injury must be the same kind of behavior the dog had exhibited in the past.
Nowadays, most states have dangerous and vicious dog statutes that outline different acts committed by dogs that will designate them as dangerous or vicious. If a dog attains this status, the owner or keeper will probably be found liable no matter what, and will not have many defenses available to them. In Ohio, under the vicious dogs section, one of the acts designating a dog as ‘vicious’ is belonging “to a breed that is commonly known as a pit bull dog.” Owners of these dogs could fall under strict liability simply because of the type of dog they have, whether or not the dog has done anything in the past.
Most owners have some defenses available to them. For vicious dogs and strict liability (not statutory vicious or dangerous dogs), a major defense would be that the owner had no knowledge of any acts or history of the dog’s behavior. If they have no knowledge, then they have no duty to others to warn or protect them from the dog. Another potential defense is when the injury occurs on the owner’s property and the person injured is trespassing. The courts will consider beyond the label of trespasser, i.e. whether that person is committing a crime or a child trespasser. However, in most instances, no matter the intent or status of the trespasser, the owner owes no duty to a trespasser to their property. With no duty owed, there is no breach of duty, and therefore no negligence.
Provocation on the part of the injured person is a possible defense. If the injured person’s actions can cause the dog fear, pain, annoyance, etc., this could be provocation. The court will look not only to the person’s actions, but whether the person had the intent of provoking the dog, or knowledge that their actions would or could cause fear, pain, annoyance, etc. However, if the person is a very young child, or mentally incapacitated, the court may find that that person does not have the ability to possess the requisite intent or knowledge of the repercussions of their actions.
If the person injured is deemed an animal ‘professional,’ such as veterinarians, groomers, trainers, etc., they are believed by courts to have assumed the risk of injury and cannot claim negligence on the part of the owner. In the case of kennels or boarding facilities, states differ as to whether these people are ‘professionals’ and assume the risk. The person in question most likely needs to be doing their job when the injury occurs in order for this defense to be used. However, responsible owners should still warn professionals if their dog could potentially be aggressive or a fear biter.
Because juries can be unpredictable, and have been known to award extremely high damages to injured persons, dog owners need to be aware of all aspects of liability for injuries caused by dogs. It can be quite a costly experience, particularly if the dog in question is not covered by homeowner’s insurance. Some breeds have been unfortunately deemed dangerous by insurance companies, and any liability stemming from such dogs are not covered. Anyone owning a dog should check with their insurance carriers and make sure their dogs are covered. Owners should be ever vigilant and careful to avoid these situations and hopefully, stay out of the court system.