Dog Bite Law

The "one bite rule," "first bite rule," and "one free bite rule" are different names for a legal doctrine that determines whether the owner of a domestic animal (such as a dog) can be held legally liable for injuries caused by that animal.

• The one-bite rule
• The history of the one-bite rule
• Dangerous propensity
• Knowledge or "scienter"
• Criticism of the one-bite rule

The "one bite rule" 

The first time that a canine attacks a human being, the paramount legal issue is the extent to which the state having jurisdiction adheres to the English common law pertaining to injuries inflicted by domestic animals.

The common law shielded the owner of a domestic animal from civil liability to the first victim of each of his animals. This absolving principle came to be known variously as the "one bite rule," the "first bite rule," or the "first bite free" rule.

However, it has been repeatedly stated in the court decisions that the name "one-bite rule" is a misnomer, in that the rule applies to any injury whether or not it was caused by a bite, and that proof of the dangerous propensity of the animal does not require the existence of a prior bite even in a biting case.

The rationale of the one bite rule was that domestic animals by definition were not injurious, and therefore liability could be predicated only on the defendant's knowledge that a particular animal had a propensity to behave in manner that was injurious to humans. Again, the rule applied to any type of injury, whether or not a bite.

The rule provided not only a shield for the animal's owner but also a sword for its victim, because it justified compensating any victim -- after the first one -- who was injured by the same dangerous propensity. The owner, keeper or harborer of the dog thus was held strictly liable when his domestic animal injured a subsequent person the same way it hurt a prior one.

English common law strict liability for canine inflicted injuries therefore was founded on the defendant's scienter (i.e., knowledge) of his dog's dangerousness. For that reason, this is often referred to as the "scienter cause of action," or as "common law strict liability." Since the gist of the tort, "is the keeping of a thing known to be dangerous, one who keeps or harbors an animal owned by another may be liable, if he has such knowledge. A bailee with scienter is of course liable." Prosser or Torts, chapter 10, section 57, page 441. The scienter cause of action can be directed against not only the dog's owner, but also its harborer or keeper:

"A person, although not the owner of a vicious dog, may make himself liable to others by knowingly keeping or harboring the dog upon his premises, after knowledge of his vicious propensities, and this is true even when such keeping is without the consent and against the wishes of the animal's owner. ... The owner of an animal is the person to whom it belongs. Whether or not a person is a keeper depends upon the peculiar facts and circumstances of each individual case. A man may own an animal and yet not be its keeper. The word 'keeper' is equivalent to 'the person who harbors.' Harboring means protecting. So one who treats a dog as living at his house, and undertakes to control his actions is the owner or keeper within the meaning of the law; but the casual presence of an animal on his premises, if not so treated, does not constitute him such owner or keeper." (3 C.J.S. 1266, § 165.)

The one-bite rule underlies civil and criminal actions in modern America. When a person is bitten by a dog, 18 American states (listed in Legal Rights of Dog Bite Victims in the USA) use the one-bite rule to determine legal liability. The other 32 and the District of Columbia have abrogated or modified the one-bite rule by so-called "dog bite statutes." (The list of those states also is in Legal Rights of Dog Bite Victims in the USA.)

The dog bite statutes vary greatly. They might or might not apply to keepers and harborers as well as owners, and to injuries by means other than biting. They might provide for full compensation, or payment of just medical bills, or payment of medical bills and other economic losses (like loss of income), or double compensation under some circumstances. Some do not apply during the day, or if the dog owner posted a "bad dog sign," or if the victim had provoked the dog weeks before. Even though they are worded as strict liability laws, moreover, the court decisions permit a variety of defenses that vary from state to state. If the state law strict liability does not apply to a particular defendant, or does not provide sufficient compensation, the victim can still assert the scienter cause of action, because it is always available in every state.

In addition to civil laws, criminal laws which apply to the owners, keepers and harborers of dogs are generally based upon the one-bite principle, in that criminal liability usually does not result from dog attacks unless the dog previously engaged in similar behavior.

Video of Attorney Kenneth Phillips testifying against the one-bite rule can be seen at the website of the Tennessee State Legislature. The video will start in Windows Media Player. Several witnesses testify, and some of the footage is graphic and upsetting. Phillips' segment begins at minute 38, his presentation about the one-bite rule lasts 5 minutes, and his entire testimony runs approximately 12 minutes.

The history of the "one bite rule" 

"Rules imposing liability for harm caused by domestic animals find their origin in authority no less ancient than the Pentateuch." Wilson v. Simmons, 103 S.W.3d 211 (Mo.App. W.D. 2003).

The one free bite rule was the law of England on July 4, 1776. Therefore it became the law of the US states at that time. Because it was part of the "common law" (meaning the judge-made law of England), it was not put into the state codes. The various pronouncements of the law had to be located in the law books of England going back to the 1600s.

The best expression of the rule is found in Restatement (Second) of Torts, § 509:

"(1)  A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm. 

"(2)  This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know."

As stated in the prior section, most American states have either eliminated or modified the one bite rule. The list of "one bite states" is in Legal Rights of Dog Bite Victims in the USA. That web page also has a list of the states that have adopted state law strict liability. The United Kingdom, by the way, still relies upon the "one-bite" rule (see the Animals Act 1971, section 2, subsection 2).

If you are in a state that has the one bite rule, you need to research it first by reading Legal Rights of Dog Bite Victims in the USA, and then (if that section of Dog Bite Law is insufficient or silent about your state) in the case books of your state. Because legal research requires training, non-lawyers who have a claim or must defend a claim are strongly advised to see an attorney rather than attempt to research this issue.

The "dangerous propensity" 

The dangerous propensity that is required in a dog bite case is the tendency of the dog to bite a person without provocation. It does not matter whether the intention of the dog is to guide or herd, as in a collie, or to kill, as in a fighting dog. The intention of the dog is legally immaterial. What matters is that the dog has the tendency to bite, because dog bites are intolerable.

The common law developed the concept of dangerous propensity to determine legal liability in all cases where a domestic animal caused injury. The traditional formulation, set forth in Restatement (Second) of Torts, § 509 (above), refers simply to "a domestic animal" and not specifically a dog. To analyze a dog bite case, therefore, one must focus on the actions of the dog that are legally sufficient to enable the jury to conclude that the dog owner either knew or reasonably should have known that his dog would someday bite a person.

It has generally been held that the prior behavior of the dog in a bite case must consist of a bite, a snap, growling, lunging, or chasing people or animals, provided that the courts having jurisdiction of the case did not previously rule out that behavior as a matter of law.

Here are some of the characteristics of a dog that were held to support a finding of dangerous propensity:

• The dog bites people without provocation. Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 43.
• The dog previously bit a person who had provoked it. Reynolds v. Reichwein (1973) 510 P.2d 895, 1973 Colo. App. Lexis 857.
• The dog follows the victim for 50 feet, barking at the victim, prior to the attack. Gomes v. Byrne (1959) 51 Cal.2d 418.
• The dog growls, barks and lunges at people. Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 728-729.
• The dog was trained to fight other dogs
• The dog is an Akita. Wright ex rel. Wright v. Calvin Reid Const. Co,. Inc., 723 So.2d 55 (Ala. Civ. App. 1997).
• The dog runs loose on common areas, barks at a stick and lunges at a stick in a vicious manner. Gibbs v. Grenadier Realty Corp. (1991, 1st Dept) 569 NYS2d 76, 173 AD2d 171.
• The dog is a pit bull and it barks and lunges at children. Giaculli v. Bright (1991 Fla. App. D5) 584 So.2d 187, 16 FLW D 2164.
• The dog is a guard dog. Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 728-729.
• See also the cases holding that the defendant had notice of the dog's dangerous propensity, in the next section.

The following facts were deemed insufficient to prove the dangerous propensity to bite a person:

• Chasing cars and motorcycles. Chandler v. Vaccaro (1959) 167 Cal.App.2d 786.
• Chasing people but not biting them. Starling v. Davis (1970) 121 Ga.App. 428.
• The dog is a Rottweiler, but exhibits no other dangerous behavior. Moura v. Randall (1998) 119 Md.App. 632, 705 A.2d 334.
• The dog is 100 pounds, is a German shepherd, and its name is "Thunder." Lundy v. California Realty (1985) 170 Cal.App.3d 813
• The dog might attack a person who threatened the dog with a stick. Buffington v. Nicholson (1947) 78 Cal.App.2d 37.
• The dog is a female who was nursing pups when it bit a person who came near the pups. Chandler v. Vaccaro (1959) 167 Cal.App.2d 786, 790.
• The dog is a puppy that suddenly woke up and nipped a person's hand, causing a minor break in the skin. Tessiero v. Conrad (1992, 3rd Dept) 588 NYS2d 200, 186 AD2d 330.
• The dog engages in so-called "muzzle greeting." Provorse v. Curtis 732 NYS2d 310 (App. Div. 4th Dept 2001).
• The dog is kept tied to a post. Dunnings v. Castro (1994, Tex. App. Houston (1st Dist)) 881 SW2d 559.

Knowledge or "scienter" 

The essence of common law strict liability is the dog owner's knowledge that the dog had a dangerous propensity. The victim can prove that the dog had a dangerous propensity in a variety of ways, some of which are listed above. However, proof of merely the propensity is not sufficient to hold the dog owner liable; the victim also has to prove that the dog owner knew or should have known that the dog had done the things that established the propensity.

The action of the dog that injured the victim in the current case must be essentially the same as the action that the dog owner previously knew or should have known of. In other words, one who knows that his large dog likes to jump on people will be charged with knowledge of a dangerous propensity (i.e., the tendency to jump upon and possibly knock a person down), but knowledge of this particular dangerous propensity will not help establish the claim of a person who was bitten by the dog. To put it yet another way, the victim must prove that the dog owner had prior knowledge of the dog's tendency to do essentially the same thing that later caused injury to the victim. As noted legal scholar William Prosser said, the prior act "must extend to the trait or propensity which caused the damage." W. Prosser, Handbook of the Law of Torts, § 76 (4th ed. 1971).

Courts have held that the testimony of an expert witness can be helpful with regard to the scienter requirement. For example, in the Diane Whipple case, expert testimony was admitted to prove that the escalating series of acts by the dogs were a clear tip-off that they were headed toward committing serious violence against a person. However, courts also have held that expert testimony alone cannot establish the subjective knowledge of the dog owner. For example, in Kathren v. Olenik, 46 Or.App. 713, 718, 613 P.2d 69 (Or.App. 1980) the court stated:

Plaintiff argues the opinion of the expert that Mordecai was vicious and would have been vicious for several months is sufficient to allow the jury to find that defendants should have known of the dog's temperament. That opinion may have been evidence that the dog was in fact vicious, but it is not evidence that the defendants actually knew of the propensity or were aware of any manifestations of viciousness that would put them on notice. The burden was on plaintiff to prove the dog was vicious and that defendants knew of the dog's propensity.

An interesting issue arises where the dog owner admits that his dog previously bit a person, but claims that the prior victim provoked the dog. This issue was addressed in Reynolds v. Reichwein (1973) 510 P.2d 895, 1973 Colo. App. Lexis 857, in which the Court of Appeals of Colorado held that the appellate courts will not overturn the trier of fact's determination that that owner knew his dog was vicious, as long as the determination finds some support in the record. In Reynolds, the dog previously bit a child that provoked it. Despite the provocation, the trial court ruled that the dog was vicious and the owner knew or had notice of the dog's vicious tendencies. 

The following facts were held to support a finding of knowledge of the dangerousness of a dog:

• The dog is kept as a guard dog. Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1135; Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 728-729.
• The dog is kept tied up: this has been proven to be a cause of viciousness
• The dog is muzzled around people
• People are kept away from the dog. Northon v. Schultz (1955) 130 Cal.App.2d 488.
• There is a "Beware of Dog" sign. Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1135.
• The owner warns people that the dog may bite. Bulow v. Dawn Patrol (1963) 216 Cal.App.2d 721, 729.
• The owner brags that the dog attacks people
• There is a newspaper article posted on the premises, describing the dog essentially as an attack dog. Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1132.
• The dog is a Husky that runs and attacks the front fence, growls, barks, shows it teeth, tries to bite through the fence, tries to jump the fence. Dixon v. Frazini (1992, 4th Dept.) 592 NYS2d 208, 188 AD2d 1054. It was held that the jury could find that the landlord had notice because she was the sister of a tenant and visited the tenants to collect rent and for family visits.
• The owner's or keeper's knowledge of a dog's vicious or dangerous propensities may be inferred by the following evidence: (1) the general reputation of the dog, (2) the size and breed of the dog, or (3) the fact that the dog is kept chained or muzzled. Smith v. Royer (1919) 181 Cal. 165, 170; 1 California Torts (1994), "Strict Liability -- Animals," sec. 6.10[3], p. 6-10.
• See also the cases holding that certain actions of the dog were sufficient to prove the dangerous propensity, in the prior section.

Criticism of the one-bite rule