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Dog Bite Law
An Overview of Dog Bite Laws
"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.
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.
Source: Rebecca F. Wisch
Michigan State University - Detroit College of Law
Associated with Animals C.L.U.B.- Freedom National Organization Incorporated (Nonprofit)
Despite the fact that animals are still considered property in all legal jurisdictions today, due process, whether rooted in the federal or state constitutions, extends to life, liberty, or property.
The more complicated issue, however, is how much process is due?
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Due Process Before the Government can Remove or Euthanize Your Dogs
Due Process Before the Government can Remove or Euthanize Your Dogs
Due Process Should be Provided to Dog Owners Before the Government can Remove or Euthanize Their Dogs
How Does Due Process Apply to Dog Seizure/Euthanasia Cases?
Despite the fact that animals are still considered property in all legal jurisdictions today, due process, whether rooted in the federal or state constitutions, extends to life, liberty, or property. The more complicated issue, however, is how much process is due?
The Supreme Court has promulgated a four prong test to determine this. In each situation, a court must weigh
-the private interest affected by the official action
-the risk of an erroneous deprivation of that interest through the procedures used,
-the probable value of additional procedural safeguards, and
-the government interest involved.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Due process requires the opportunity to be heard at a meaningful time and in a meaningful manner.
Rabon v. City of Seattle (Rabon II), 107 Wash.App. 734, 743 (2001) (citing Mathews, 424 U.S. at 333). Thus, when individuals can show they will suffer irreparable harm from a post-deprivation hearing, courts have recognized that a pre-deprivation hearing is necessary. In the case of orders to euthanize pets, many courts have considered the loss to the pet owner as irreparable.
Before the Hearing: Filing a Petition for a Preliminary Injunction
Dog owners should file a petition for an injunction to delay the killing of the dog until they have had the chance to be heard in court (For an actual example, see Petition for Preliminary and Permanent Injunction in the case of Wilson v. City of St. Louis (1990), which involved a Pit Bull named "Max" who was impounded and classified as dangerous because he allegedly killed the neighbors dog. The Circuit Court found that the plaintiff would suffer irreparable harm if the preliminary injunction was not granted and enjoined the city from killing or otherwise harming Max. The court ordered the city to release Max and change his dangerous designation to potentially dangerous.)
Overriding the Decision - Petition for a Writ of Mandamus
Due process includes more than just going through the motions of a hearing. In fact, even after hearings have been granted, decisions can be challenged as a prejudicial abuse of discretion that is not based on findings of fact or law. (This is what the owners ofBoo, a bullmastiff who allegedly bit a child, argued in Williams v. Orange County Animal Control (1996)). In this case, owners should file a Petition for a Writ of Mandamus, a judicial remedy issued by a superior court to compel a government officer to do or forbear from doing a specific act, to delay the euthanasia order until the appeal can be heard. This writ of mandamus applies in any situation in which the euthanasia should be stayed, including scenarios in which an original hearing was never given.
Minimum Standards of Due Process for the Hearing
It is now also clear that hearings must meet certain minimum standards. Informal reviews that animal control agencies frequently provide upon the dog owners request often do not fulfill these requirements, because the decision-maker may not be qualified to render the judgment or may not be impartial if he also made the original decision to euthanize the dog. For example, in Phillips v San Luis Obispo County Dept., 228 Cal.Rptr. 101 Cal.App. (2 Dist.,1986), the owners of Missy, a black lab known to have a bad habit of biting children, contested the citys decision to euthanize her. The amicus brief filed by Joyce Tischler of the Animal Legal Defense Fund pointed out the Municipal Codes at issue did not provide for the Animal Regulation Directors orders to be reviewed by the Chief Sanitarian of the County Health Department or the supervising environmental health officer, the two individuals who presided over the first and second hearings.
Challenges to the Ordinance Itself
In fact, many city ordinances are flawed in that they fail to specify that owners are entitled to hearings before their pets are euthanized. These municipal codes can be challenged as unconstitutional and, even if the city already granted hearings that met minimum due process standards, the decision to euthanize the pet would still have to be overturned. Otherwise, whether dog owners generally would receive due process would be at the whim of the animal control agency, and the city could avoid having to correct its municipal codes simply by voluntarily giving all dog owners a hearing. The court of appeals in Missy's case agreed, concluding “that the ordinances here are unconstitutional for failure to provide for notice and a hearing either before or after the seizure of an uncontrollable biting or vicious dog.
Most recently, in a landmark case, the court of appeals in Mansour v. King County, 128 P.3d 1241 (Wash.App. Div. 1,2006) held that due process required even more than offering owners a hearing, ordering that “an agency seeking to enforce a removal order must prove both the violation and the remedy it has imposed by a preponderance of the evidence. This is the same standard of proof imposed on the government when it attempts to temporarily remove a child from the custody of his parents. By instituting a burden of proof on the city, the court was essentially finding that the dog must be presumed innocent until the city can prove otherwise. Previously, there had been no standard of proof, and reviewing courts would only look to see if Animal Control had acted arbitrarily or capriciously. Thus, even the most minimal evidence that a dog should be removed would suffice, and owners would bear the burden of proving their pets innocent. Moreover, the court found that due process attached not only for orders to euthanize an animal, but also for orders of removal outside the county (Peter Mansour had been ordered to remove his dog from the county or turn his dog over to the city to be euthanized after his dog was accused of killing a cat).
Finally, the court held that due process required Mansour to have the ability to subpoena records and witnesses in his defense, and that the Notice and Order of Violation had to specify exactly what code provisions had been violated. Merely issuing a brief and concise description of the conditions for finding the violation is insufficient. Mansour was entitled to know ahead of time exactly what the County needed to prove at the Board hearing. If in fact it could not prove that Maxine violated a code provision that supported the removal order, he [Mansour] was entitled to know that in time to move for a dismissal at the Board level. Source Reference: Animal Legal and Historical Center.
There are some significant problems with dangerous dog laws and euthanasia execution solutions.
1. They do not reduce the number of dog bites. By focusing on the after-effects of a bite, these laws do not take any measures to prevent bites. In theory, the risk of punishment is a motivation to change behavior. But most dog owners do not believe their dogs to be dangerous. So the perception is that these laws are for other dogs, problem dogs, but not their dog. Then, when a bite occurs, that particular owner may face additional liability, but his friends and neighbors will not change their habits regarding their own dogs
2. The laws do not take into account the severity of the incident. Most dangerous dog laws cover a huge range of behavior from "threatening displays" to actual bites. What this means is that you may be as liable for your goofy social dog rushing out the door and charging gleefully at a neighbor as another owner is for an undersocialized, aggressive dog who bites a child on the face. Are these equal? Under many dangerous dog laws, they are
What it comes down to is this.
Dangerous dog laws are a feel-good attempt to show the community that we are taking action, even with a goat bite incident.
Unfortunately they do not provide any protective effects, merely punishment after the fact. There are many things this community can do to prevent dog bites, including educating parents, rural families or farmers, and citizens how to supervise and when to intervene in kid-and-dog, or dog-and-coyote, interactions, teaching owners how to socialize and train their dogs with methods that encourage friendly behavior and providing some basic education about canine body language so the many misunderstandings we have with dogs each day can be reduced.
Where's the 'outrage' to save an owner's alleged 'innocent' dog?
This case about this lab dog named Niko who is accused of killing a pet goat in Rowley, MA.is a classic case of a failure in justice for all, as it is alleged by sources of anonymity to this NationalDogPress.com reporter, that there is absolutely no proof, the Animal Control Officer (ACO) was allegedly negligent, and the vet did not follow the proper steps to distinguish between a coyote attack and a dog bite. Additionally, repulsive is the alleged fact (from a source of anonymity), that these Boards of Selectmen are spending 10 minutes with a file and issuing a dog the death sentence, and this should 'outrage' those of us who follow the Constitution and regard dogs as more than chattel.
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