Dog Bite Law

Determining ownership for the purpose of affixing legal liability

In a civil dog bite case, the ownership of a dog that bit a person can result in strict liability, negligence per se liability for the violation of a statute, or common law liability based on scienter. In a criminal dog bite case, ownership can be the basis for prosecution. Despite these important ramifications, however, it is rare to find a specific definition of "dog owner" in any jurisdiction.

A distinction needs to be made between the legal concept of ownership and the act of registering or licensing. Our cars, homes, guns, dogs and children usually are publically registered and therefore bear our name, but our cats, food, plants and other things do not even hint at their owner's identity. Most of our possessions, in fact, display not our names but rather the corporate logos of Nike, Kenmore, Sears, the Gap, Apple, et al. Nevertheless, something that is unregistered is not "unowned." One does not have to register something in order to be its owner. For example, one can own an unregistered car, gun or dog. In dog bite cases, frequently the attacking dog is not registered, and yet the victim is entitled to proceed against the dog's owner.

In our world of "things," ownership is a paramount concept, and the law has become adept at identifying owners. Generally, the "owner" of something is the person recognized by the law as having the ultimate control over it and the right to use it for as long as the law permits, provided that no agreement or covenant limits his rights. Someone who leases or rents it from its true owner, previously sold it, has temporary possession (i.e., a bailment) of it for a specific purpose, or has misappropriated, coverted or stolen it, is not considered to be its owner.

In cases involving dogs, ownership is determined pursuant to state and local law. These differ from one jurisdiction to the next. In some, there are statutes and ordinances which provide somewhat specific criteria for determining who owns a particular animal. Typically, they provide that "owner” shall include the legal owner, equitable owner, and any person, association, partnership, or corporation harboring or having custody or control of an animal.

This definition is helpful to the extent that it equates dog ownership with "harboring" or having "custody or control" of the animal. These actions are somewhat specific and therefore can proved by testimony and tangible evidence such as receipts for dog food, notations on veterinary records, a signature on the authorization for euthanasia, and of course the dog license itself. However, the definition is circular, in that it says the the owner is the "legal owner" or the "equitable owner."

To determine the ownership of a dog, it is often necessary to resort to the particular state's method of determining the ownership of personal property in general. For example, the California Evidence Code has the following general provisions:

632. A thing delivered by one to another is presumed to have belonged to the latter.

637. The things which a person possesses are presumed to be owned by him.

638. A person who exercises acts of ownership over property is presumed to be the owner of it.

The courts have had to step in to fill the gaps created by these very general, Californian statutes. The caselaw has established, for example, that "[o]ne of the chief incidents of ownership in property is the right to transfer it." (Bias v. Ohio Farmers Indemnity Co. (1938) 28 Cal.App.2d 14, 16.) "A common characteristic of a property right, is that it may be disposed of, transferred to another." (Douglas Aircraft Co. v. Byram (1943) 57 Cal.App.2d 311, 317.) One or more persons may be an "owner," and thus liable for the injuries of a third party, even though no such "owner" possesses all of the normal incidents of ownership.'" (Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1571-1572, citing Stoddart v. Peirce (1959) 53 Cal.2d 105, 115.) Ownership is a question of fact to be determined by a jury under appropriate instructions of law. (Kaley v. Yachts (1986) 187 Cal. App. 3d 1187.) Also see Coakley v. Ajuria, 209 Cal. 745, 290 P. 33.

The following analysis was used in Ellsworth v. Elite Dry Cleaners, etc., Inc. (1954) 127 Cal.App.2d 479 to uphold the trial judge's finding that the defendant was the owner of a dog named "Eric":

The evidence shows that defendant DuNah purchased Eric; that the dog's license listed him as owner, giving his residence rather than his business address; and that the ownership of the dog was never transferred to Elite. The trial judge may well have entertained doubt that the $100 paid for the dog was an item chargeable to or intended to be paid out of defendant DuNah's annual $1,200 check for entertainment and other small expenses in view of the amount and character of the expenditure and the fact that his brothers each received a check in like amount but did not join in the purchase of the dog. The personal care and attention which defendant DuNah constantly gave the dog is not without significance in support of the finding that he owned and kept Eric. Applying the above principles, the evidence is clearly ample to support the finding that he was the owner of the dog and this finding is sufficient to sustain the judgment. (Ellsworth v. Elite Dry Cleaners, etc., Inc., ibid., at p. 483.)

Other states also have court decisions that help to determine who the law will regard as the owner of an animal. These decisions demonstrate the great flexibity which the law employs in resolving this issue. For example, in Maine the custody of a dog has long been regarded as sufficient in itself to prove ownership, at least in the absence of contrary evidence. (Grant v Ricker (1883) 74 Me 487.) In Indiana, it was held that a person can be regarded as an owner (and thereby held liable for a dog attack) even though he did not have custody of the dog and therefore did not fit the state's general definition of "owner." (Cook v. Whitsell-Sherman, 771 N.E.2d 1211 (Ind. Ct. App. 2002).)

Kentucky Revised Statutes section 258.095(5) defines an "owner" of a dog as "every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned by him." Based on this, the Court of Appeals of Kentucky has stated:

The statute [KRS sec. 258.095(5)] was designed to expand liability to those parties who keep dogs, such as kennel owners, veterinarians, and other persons who keep dogs owned by others in their care, as well as any person who keeps a dog owned by another on their property. 'Owner' in this case does not simply mean a person with a property interest in the dog, for reasons of public policy. Jordan v. Lusby, 81 S.W.3d 523 (Kent. Ct. App., 2002).)

Similarly, Minnesota Statutes section 347.22 (1988) (the strict liability dog bite statute) provides, "The term 'owner' includes any person harboring or keeping a dog but the owner shall be primarily liable." The Minnesota Supreme Court therefore has defined "harboring" as giving lodging, shelter, or refuge to a dog for longer than a limited time or for more than a limited purpose, even without the owner's permission. (Verrett v. Silver (1976) 309 Minn. 275.)

A statute that defines "owner" as "harborer" may prevent certain dog bite victims from recovering compensation upon the ground that their temporary custody of the dog rendered them its "owner" under that statute, and therefore unable to make a claim. For example, Tschida v. Berdusco, 462 N.W.2d 410 (Minn. Ct. App. 1990) held that the statute's definition of "owner" as including "any person harboring or keeping a dog" protected a dog owner from a claim by a veterinary assistant, on the ground that the statute excluded the "legal owner" from liability to a "second party owner" (terms used by the Minnesota court.) The same reasoning was adopted in Kentucky. Jordan v. Lusby, 81 S.W.3d 523 (Kent. Ct. App., 2002). However, both Tschida and Jordan were assumption of the risk cases, where canine professionals were making dog bite claims because of injuries received while working on the defendants' dogs. It can be contended that such cases should be limited to their facts, which do not apply to the more common dog bite cases.

In Pippin v. Fink, 794 A.2d 893 (2002), a New Jersey appellate court held that the live-in companion of an individual who bought and registered a dog may be held liable for the dog's actions under the state's dog bite statute, N.J. Stat. Ann. 4:19-16, because both individuals considered the dog to be theirs and presented themselves as the co-owners of the dog. In Illinois, it was held that when an individual accepts responsibility for controlling a dog, he or she becomes an owner within the definition of the Illinois dog bite statute. (Wilcoxen v. Paige (1988) 174 Ill. App. 3rd 541.)

A variety of acts or incidents of ownership were exercised by a fraternity that was deemed to be the owner or "keeper" of a dog in the case of Oertel v. Chi Psi Fraternity, 239 Ga. App. 147, 521 S.E.2d 71 (1999); the dog's photograph appeared in local chapter's composite photograph among members of fraternity with title "mascot," he lived at the fraternity house, the fraternity paid for his "shots and stuff," and the fraternity sent a representative to pay his fines on several, perhaps five, other occasions that the dog was found to be running at large.

The ownership issue has been used to defeat an unusual claim by a "keeper" of a dog against its "owner" in a strict liability state. Several courts have addressed this interesting issue and concluded that the strict liability statute does not make the original owner strictly liable to the "secondary" owner. (See, i.e., Jordan v. Lusby (Kent. Ct. App., 2002) 81 S.W.3d 523, Wilcoxen v. Paige (1988) 174 Ill. App. 3rd 541, and Tschida v. Berdusco (Minn. Ct. of App., 1990) 462 N.W.2d 410.)

State law concepts of ownership and liability of dog bites cannot be used to impose liability upon the federal government, at least when the attack happens on a military base. Chancellor ex rel. Chancellor v. United States (6th Cir. 1993) 1 F.3d 438 was a federal case involving a dog bite injury that occurred on the grounds of Fort Knox. In that case, the plaintiff alleged that the Kentucky statute operated to make the United States an "owner" of the dog. At the time the plaintiff was bitten, the dog was in an apartment inhabited by the sergeant who was indeed the dog's owner, in other words the person who held the actual property interest in the dog. The plaintiff in that case argued the statute operated to make the United States an "owner" of the dog because the sergeant had to obtain the permission of the base commander to keep the dog. The Sixth Circuit held that the statute could not be used to make the United States liable for the dog bite, and in any event held that no claim could be made against the United States under the Federal Tort Claims Act because of a recent United States Supreme Court decision insulating the government from liability in strict liability cases. Chancellor, 1 F.3d at 440.

At trial, it is essential to have admissible evidence of ownership in states where liability for a dog bite is tied to ownership of the dog. Many of the dog bite statutes are indeed "bite" statutes, in that they cover bites and no other injurious behavior of a dog (such as scratching or knocking down). If the only ground of liability is that the defendant was the owner, or if ownership is an essential element of the case, then the victim has to be ready to prove it. One of the best ways to satisfy this burden is to obtain an admission in proper form (such as by using the Dog Bite Litigation Forms written by Attorney Kenneth Phillips). For an example of a case that was lost because of inadequate proof of ownership, see Atkins v. Conley, 504 S.E.2d 920 (W.Va. 07/02/1998) ("The testimony regarding conversations with the veterinarian in the present case was introduced in an attempt to prove the ownership of the dog, the dispositive issue in the case. We find the admission of such evidence improper; thus, reversal and remand are necessitated, especially in light of the fact that ownership was the key issue at trial.")

As a practical matter, defendants rarely succeed in establishing that they do not own a dog which lives in their house. In the Diane Whipple case, for example, the defendants claimed that they were not the owners of the killer dogs, but merely were their temporary custodians. That defense failed, as did all others, and the jury returned convictions on every criminal count. In the legion of cases handled by Attorney Kenneth Phillips, the defense of non-ownership has been attempted only several times, but has never succeeded in terminating a claim.

Transfering ownership of a dog

The ownership of a dog can be transferred in the same manner as other property. In some cases, it can be unclear whether a transfer has taken place. For example, some rescue groups commonly include clauses in their agreements with consumers, saying that the rescue retains ownership for a period of time, or has the right to reclaim the dog (in other words, a right of control or dominion that is one of the acts or incidents of ownership). In some cases, a person who has cared for a dog for a significant period of time might want to be considered to be its owner, or need to be considered its owner, such as when the dog has a terminal, wasting illness and should be euthanized.

Ownership of a dog can be fixed by a clearly written agreement. Minimum requirements for such agreements can be found at Adoption Organization Liability for Dog Bites. When a dog owner wants to retain ownership of his dog, but has to board it with another person for a significant period of time, issues relating not only to ownership but also veterinary care and other special requirements of the dog can be dealt with by a written agreement, such the Agreement for the Temporary Care of a Pet, drafted by Attorney Kenneth Phillips (and available for free by clicking the link).

Ownership v. guardianship

Animals are ethically and legally regarded as property. As such, they can be used as their owners may wish, with notable prohibitions against cruelty towards some animals, the extinction of some animals, and the organized fighting of some animals. For example, killing a dog for sport is illegal, but not killing a fish.

Many have considered a philosophical shift in our approach to animals. This "new" approach is sometimes referred to as "animal rights." The scope of this topic is vast, and the interested reader is referred to the Animal Legal and Historical Center for more information, and specifically the article by Gary L. Francione entitled Animal Rights Theory and Utilitarianism: Relative Normative Guidance ( 3 Animal L. 75 (1997) .)

Some advocates of animals rights have suggested that the laws related to domestic animals (at least) should eliminate the concept of ownership, replacing it with that of "guardianship." The ethical and moral reasons for this proposal are interesting and compelling. However, many dog bite laws apply to owners, and those who lobby for this change have not provided a solution for the confusion it would create. Furthermore, a guardian does not have the legal right to exercise dominion over that which is the subject of the guardianship, raising additional questions about the duties and liabilities of guardians of animals. For example, as the owner of a dog, one can decide whether to give the dog a degree and quality of veterinary care that would prolong its life or just the opposite, to end its suffering; as the guardian instead of the owner, however, one might not necessarily have that right. This is one of many issues raised by the concept of guardianship.

Adoption organization attempts to retain elements of ownership of dogs adopted-out

Some adoption or rescue organizations have developed contracts that purport to give them perpetual rights to control dogs that are adopted-out. Some of these contracts purport to give the members of the organization the right to enter the new dog owner's home without prior notice or permission, dictate how and where the dog can be kept, and other things.

These contracts have not been tested in court. They can result in liability being shifted back to the organization, if such agreements are valid in the first place. Here is the story of one such interaction between this kind of rescue group and a family that adopted one of the group's pit bulls:

Dear Mr. Phillips:

My family has been struggling with a Pit Bull rescue group that we adopted a dog from about two years ago. About six month after adopting the dog my wife became pregnant and we decided that this dog was not a good fit for our family because of its behavior around young children. We notified the rescue of this decision but said that we would "foster" the dog until they could find a new home.

Given the stigma on pit bulls we assumed that this would take some time, but after over 1 year and the fact that we now have a crawling infant we had had enough and told the rescue that they needed to come get the dog.

They then informed us that the adoption contract we signed gave them an additional 4 months before they needed to take the dog. After the 4 month they would take the dog but we would owe a $500 "damages" fee.

The contract also states that we have no rights to take any other actions to find another home for this dog on our own. We can't give the dog away, we can't sell the dog, we can't euthanize the dog. According to them my only options are to keep the dog, or give it back to them after paying the $500 penalty.

Here is a copy of their e-mail message to me:

"Once a foster home is found or the four month period expires, I will make arrangements with you to receive the dog. At that time, bring her to us and a check for $500 will be required since you are breaching the Life Long Commitment Clause. By signing the contract you acknowledged that adopting a dog is a commitment for the life of the dog, and since you are choosing not to honor that commitment, payment of damages is required. If you choose to contest the payment of damages, the rescue will have no choice but to pursue legal channels in order to recover the cost of re-homing the dog. In the past, the courts have awarded the rescue damages, court costs, and attorney's fee which would far exceed the $500 you were originally asked to pay, so please consider that when making the decision not to pay."

So, my questions are:

Do I own this dog or do they? Am I liable for this dog or are they? If I own the dog can they sue me for giving it away to someone else? If they own the dog can they force me to pay them to return it?

The contract in question contained the following clause, giving the adoption organization the right to send anyone into the family's home at any time, without permission or notice:

The contract contained a provision requiring the family to break the law by not turning the pit bull over to animal control in the event that the dog attacked anyone:

Contracts like the forgoing are dangerous because they purport to give the adoption organization, and any person acting on behalf of it, the right to behave in a manner that otherwise would be criminal. An example of such behavior was seen on YouTube in 2007. Comedienne Ellen DeGeneres and her partner, Portia de Rossi, "adopted" a Brussels Griffon mix on Sept. 20, 2007. When the dog did not fit into their household, they did what dog owners almost always do: they gave the dog to someone with kids, who seemed fit to provide the dog with a good home. In doing so, however, they infuriated the person who "adopted out" the dog. The latter ran an "adoption agency" for dogs and, when she "adopted out" a pooch, she made people sign a contract that restricts what can be done with the dog in the future. On the basis of the concept of "adoption," and the wording of that contract, the "adoption agency" reclaimed the dog from the new family. The video showed a person rushing into the family's back yard, snatching the dog and then running off with it. (To read Kenneth Phillips' blog post on the incident, click here.)

There is an old saying, "Let the buyer beware." Today, one must beware when adopting dogs and signing contracts pertaining to dogs. It is likely that contracts such as the one quoted above would never be enforced in court. Nevertheless, defending oneself against a lawsuit is costly in terms of time, money and emotions.

www.dogbitelaw.com and each of its sections and products, including Dog Bite Law, The Dog Bite Law Adviser, Dog Bite Litigation Forms, What To Do If Your Dog Is Injured Or Killed, Avoiding Liability When You Train, Shelter or Adopt-Out, Anatomy of a Dog Bite Case, and the foregoing text, are (c) 1999-2009 Kenneth M. Phillips. All rights reserved. Reproduction in whole or part prohibited except where advance permission is granted in writing. Please read the disclaimer and our rules for linking and quoting. Reporters seeking interviews are welcome to contact us by clicking here.