Dog Bite Law

Bite

The word "bite" is used in judicial decisions, statutes and local ordinances. Indeed a "bite" is a necessary element for statutory liability in 9 of the 31 jurisdictions that have dog bite statutes. (Footnote 1.) The characterization of the dog's action as a bite or a swipe of the teeth or claws is of paramount importance to dog bite cases which are based upon these dog bite statutes, a dangerous propensity, or ordinance violations that are based upon biting or bite wounds. The precise meaning of "bite," however, differs from one jurisdiction to the next.

Where the word "bite" is not defined by a statute or ordinance where the attack happened, courts throughout the USA hold that the dictionary definition of "bite" shall be used. A typical definition of the verb "bite" is "to seize with the teeth so that they enter, grip or wound." (Webster's Third New International Dictionary (1993) at p. 222.)

For example, in Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176, a man named Johnson was on a ladder, repairing the roof of the McMahans. Suddenly, the McMahans' dog jumped at him. The dog's jaws closed on Johnson's pants. He claimed a part of his leg was also between the jaws, separated by the pants, but the skin was not broken. Johnson fell from the ladder and was injured. The appellate court held that this injury was a bite under the California dog bite statute, which refers to a "bite" but does not define it. The "bite" was the action of the dog in which it closed its mouth upon and gripped the pants of the victim. The court's reasoning is instructive:

Assuming that plaintiff's leg was between Timber's jaws, separated only by the jeans plaintiff was wearing, was there a "bite" even though the skin was not broken or wound inflicted? The commonsense answer is "yes." The word "bite" (as opposed, for example, to the phrase "bit off") does not require a puncture or tearing away. We turn to a particularly reliable source: an authoritative dictionary. In Webster's Third New International Dictionary (1993) page 222, we find the term defined at length. The first meaning is "to seize with the teeth so that they enter, grip, or wound." The next variant is "to remove a part of something with the teeth," and the next: "to seize, pinch, or sever with the jaws." While piercing the skin may be a common result of a dog bite, there is nothing in the language, plainly read or in its lexicographical meaning, that requires that the skin be broken or a wound inflicted. Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176

In fact, some of the most painful dog bite injuries consist of crush wounds to the soft tissues beneath the skin. For example, a victim wearing denim jeans might have a painful crush injury but no broken skin. It seems only fair that the dog owner be responsible for the infliction of such an injury.

There are some jurisdictions, however, that have passed laws which define a "bite" more restrictively, at least for some purposes. In these jurisdictions, a bite requires a puncture or tear of the skin. For example, consider this city ordinance, which leaves out the concept of a "grip" as being a bite:

Las Vegas Municipal Code, section 7.04.100: Bite. "Bite" means a puncture or tear of the skin inflicted by teeth of an animal.

Note that a city ordinance would control only proceedings governed by city law, such as dangerous dog hearings, as opposed to tort actions brought under state law, such as dog bite claims.

Biting, swiping and clawing

In some cases, it is unclear whether the injury to the victim's skin resulted from biting, swiping with the teeth, or clawing with a paw. Tears and scratches can come from a dog's teeth or claws, and when the teeth are involved, the injury may or may not have occurred as the dog was attempting to close its jaws upon the victim. By swiping or moving its head in a quick manner, a tooth from the dog's open mouth can cause injury. Arguably, such an injury might not be a "bite." Clawing is entirely different than biting unless the manner of attack includes lunging with one or both forelegs raised during an attempted or actual bite.

Characterizing the dog's action as biting, swiping or clawing is often essential to determining whether a defendant is liable for the resulting losses and damages. A bite is an essential element in cases brought under dog bite statutes which specifically use the word "bite." 9 of the 31 jurisdictions that have dog bite statutes make reference to a "bite." (Footnote 1.) The manner in which a dog inflicted injury is also an essential element of the common law cause of action for scienter. In common law cases where the prior act was a bite, liability in the current claim must be based upon a bite or something very close to a bite. Similarly, where liability is based on a dangerous propensity, both the prior and current acts must be substantially similar. Swiping at people with the mouth while playing may or may not be substantially similar to biting. Clawing might be substantially similar to biting if the manner of attack includes lunging with one or both forelegs raised, in which event clawing might well be considered as part and parcel of a certain dog's dangerous propensity to attack.

Three legal issues therefore arise from such incidents. The first issue is which party has the burden of proof that the wound was inflicted by biting, swiping or clawing. "Burden of proof" refers to the obligation to prove that an allegation is true or false.

A party that has the burden of proof must produce sufficient evidence to convince the fact finder that the allegation is true or not. In a dog bite case that is based upon a dog bite statute or ordinance which refers to a bite, or on a dangerous propensity to bite, the victim is required to prove that a bite occured.

The second legal issue that arises is what type of proof is admissible to prove that the action was a bite. Admissible evidence consists of testimony, a document or another item of sufficient relevance and reliability to constitute a fair basis upon which to judge an allegation to be true or false.

There are several methods of proving that the action of a dog was a bite as opposed to something else. First, it is common knowledge that dogs normally close their jaws upon an object as opposed to waving their faces at it, brushing their whiskers against it, or striking it with their snouts. Being a matter of common knowledge, this does not require any evidence at all. The Restatement of Torts 2nd, section 290, establishes that all people are deemed to have knowledge of the "qualities and habits" of animals, including dogs. (Footnote 2.) Therefore the victim would not be required to produce evidence to prove this point, and nevertheless would be permitted to argue it to the fact finder.

The second method of proving that the action was a bite would consist of the absence of witness testimony that the dog's face was going from one side to another or that its claws were raised at the time of the injury. Without such movements, it would appear clear that the intention was to bite and the action in fact was a bite.

Another approach to proving that the action was a bite would be to rule that the existence of a wound, incurred in the immediate presence of a dog, should be presumed as a matter of law to have been inflicted by a bite. This ruling would be based upon the common knowledge that dogs normally close their jaws upon an object, rather than do the things mentioned above. The presumption could be considered rebuttable by evidence that the dog indeed only scratched or clawed the victim.

The third legal issue that arises from incidents in which it is unclear how the injury resulted could be regarded as a political or legislative issue, namely whether the dog bite statutes should eliminate any reference to a bite and focus instead upon the infliction of injury to the victim. The dog bite statutes of most states do not, in fact, require an actual bite. (Footnote 1.) If the policy of the law is to protect people from injuries inflicted by dogs, encourage dog owners and keepers to be vigilant for the safety of others, and spread the burden of canine-inflicted injuries between the victims and the dog owners, there is no reason to limit the statutes to bite wounds.

Statutory liability without physical contact

An interesting issue arises in states where the dog bite statute does not refer to a "bite" and the dog does not even come into contact with the victim. For example, New Hampshire Rev. Stat. Ann. § 466:19 makes dog owners strictly liable for damages caused by a dog's "vicious or mischievous acts." The question is whether this requires that the dog actually come into physical contact at all with the injured person.

The Supreme Court of New Hampshire held N.H. Rev. Stat. Ann. § 466:19 has answered in the negative, ruling that no physical contact is necessary where the dog' actions are mischievous. In the case of Bohan v. Ritzo (1995), a man was riding his bicycle when he saw a small dog running toward him. He stuck his leg out to ward off the dog, lost his balance, and fell, suffering severe injuries. He sued the dog's owners, alleging violation of the statute. A jury awarded plaintiff damages. Affirming, the state high court rejected defendants' argument that a simple encounter with a dog is insufficient to support a claim under the statute. Plaintiff's allegations were sufficient to establish that the dog's actions had been "mischievous," the court said. Moreover, the court noted plaintiff had not relied on the mere presence of the dog, but had alleged specific mischievous actions that caused his injuries.

The court also rejected defendants' argument that the statute requires an actual bite or other direct contact, noting that nothing in the statute's plain language limits its application to those situations. If the legislature had intended to limit strict liability to cases where a dog's vicious or mischievous acts include an actual bite or other physical contact, it could easily have worded the statute to that effect, the court reasoned.

Footnotes

Footnote 1. The states that impose strict liability only where the dog's action is a bite include Arizona, California, Colorado, Indiana, Michigan, Montana, Nebraska, New Jersey and Washington.

The jurisdictions that impose strict liability regardless of whether the action of the dog was a bite or something else include Alabama, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Utah, West Virginia and Wisconsin.

Footnote 2. Restatement of the Law, Second, Torts, § 290 What Actor Is Required to Know: "For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know (a) the qualities and habits of human beings and animals .... "

Illustration (g): "A reasonable man is required to have such knowledge of the habits of animals as is customary in his community. Thus, he should know that certain objects are likely to frighten horses and that frightened horses are likely to run away. He should know that cattle, sheep, and horses are likely to get into all kinds of danger unless guarded by a human being, that bulls and stallions are prone to attack human beings and that even a gentle bitch, nursing her pups, is likely to bite if disturbed by strangers."

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