Real simple definitions
- A “dog bite statute” generally makes a dog owner strictly liable for dog bites if the victim did not provoke the dog and was not a trespasser. Some statutes also cover non-bite injuries and make non-owners liable too. Go to your state’s page here on dogbitelaw.com for more details.
- “Negligence” means doing something that a reasonable person would not have done, or failing to do something that a reasonable person would have done. Example: letting a dog loose in the house after promising a guest it would be locked up.
- “Negligence per se” means liability based on violating a law that would have prevented the accident. Example: a leash law.
- “Scienter” refers to keeping a dog after learning that it has the tendency to harm a person by biting, playing too roughly, etc. It also is called the “one bite rule” even though a bite is not required.
- An “intentional tort” means conduct that is intended to cause injury. Example: commanding a dog to attack a person without legal justification.
The one bite rule
In every state, a dog owner or harborer will be held liable if he knew, before the biting incident, that his dog had the tendency to bite people without justification. Even though this is the law throughout the USA, it is important to the dog bite victim only in the few states that have not enacted statutory liability (see below). It is the most difficult legal ground for the victim, because he must prove that the dog previously bit a person or acted like it wanted to bite a person, and that the owner knew or should have known of the dog’s propensity to bite. This rule also covers injuries other than bites, such as “knock-downs” and tripping. It also governs liability stemming from injuries inflicted by other domestic animals, such as cats. Additionally, it is the basis for holding third parties such as landlords liable for dog bites.
The names “one bite rule” and “first bite free rule” are inaccurate because a “bite” is not necessarily required. A victim is entitled to recover if he can prove simply that the dog previously demonstrated that it wanted to bite people, and that the dog owner knew (or should have known) that the dog previously demonstrated this vicious tendency.
In almost every state, a dog owner (as well as any other person) will be held liable if his negligence causes a biting incident. “General negligence” is the doing of an act without due care, or failing to do something that due care requires. It also can be defined as doing something unreasonable, or failing to do something that reason requires. A common example of negligence is allowing a dog to run loose in a day care center. Other examples of negligence include allowing a dog to run loose at a sleepover, chaining a dog to a tree near a family gathering, and walking too many dogs at once. A landlord can be held liable for negligence for allowing a vicious dog to live on the landlord’s premises or even a tenant’s premises.
Another kind of negligence is violating an animal control law. Many cities have leash laws, laws that prohibit dogs from running at large, and laws that prohibit dogs from trespassing. Breaking one of those laws is not only a minor crime but also a form of negligence. It is referred to as “negligence per se,” which is defined as the doing of an act that violates a law intended to prevent harm, such as a leash law. The person who violates any such law usually must pay full compensation to someone who is hurt because of the violation, as well as pay the penalty for the crime.
There are many types of animal control laws at the state, county and city level, so one must always study all three codes. Whenever there is no history of prior biting, and nothing negligent about the dog owner’s behavior, the entire claim might rest upon the violation of an animal control law or the creation of a public or private nuisance. For that reason, an attorney must be consulted. Additionally, there are subtle differences in how legal doctrines are applied from one jurisdiction to the next. For example, some regard a violation of an animal control law as evidence of negligence as opposed to negligence per se. Again, a personal lawyer must be consulted.
In two-thirds of the states, a dog owner (and sometimes a harborer or keeper) will be held liable for dog bites pursuant to a statute. In general, statutory liability is the most simple way that a victim can receive compensation. Additionally, it is the least disruptive to the relationship (if any) between the victim and liable party — an important consideration because 75% of the time they are relatives, friends or neighbors. This form of liability does not make the victim an “accuser,” or require proof that someone did something “wrong.”
The states having a dog bite statute are referred to as “statutory strict liability states.” The usual prerequisites for compensation are that the victim was bitten, and the “defendant” owned the dog. The victim does not have to prove that the dog previously bit anyone or acted like it wanted to bite anyone. One must always read these statutes closely, however, because some have limits or additional requirements. A few even combine principles of negligence and the one bite rule, and therefore are called “mixed” dog bite statutes.