Learning the Facts

Dog Bite Lawsuit Forms 270The interview must elicit the facts that will enable the lawyer to analyze a variety of potential claims and defenses, and assist the firm to gather the necessary evidence, through witnesses, documents and tangible evidence. Here are the necessary questions, with a short explanation as to why the information is so important:

How old is the victim today? 

The purpose of this question is to determine the applicable statute of limitations.

When did this happen?

The answer to this question will determine (a) whether the statute of limitations has expired, and (b) whether the passage of time will make it difficult to gather the necessary proof to make a claim. See Beware of the Statute of Limitations.

What city, county and state did it happen in?

The state law is contained in statutes and defined by cases. See Legal Rights of Dog Bite Victims in the USA for particular state laws and also for a great summary of the most common legal principles applicable to dog bite claims.

If the state has a dog bite statute, you need to determine quickly whether it applies. The issues presented by statutes are as varied as the statutes themselves. Focus on the following:

  • Whether your state statute refers to the dog’s “owner,” or whether it also applies to “harborer,” “keeper,” and/or a person having custody and/or control of the dog. Some statutes even refer to the parents of minors who own dogs.
  • What action of the dog is covered: a “bite” or an “injury”?
  • What limitations or exclusions, if any, are contained in the statute? Does it only apply at night, in cities, to victims that are on governmental business, etc.?

If you do not have a dog bite statute, you are in a one bite state. See The One Bite Rule. You need to do a memo of law prior to the interview with the potential client, focusing on the following:

  • Does your state allow a victim to base a claim upon negligence? If so, does negligence require actual or constructive knowledge that the dog previously bit a person or acted viciously toward people even if not biting them (in which event, your state does not use a true negligence standard and your case is harder to prove).
  • Does your state allow a claim based upon negligence per se, meaning the violation of an animal control law which relates to safety from bodily injury incurred by a human being. If true negligence is an accepted cause of action, then negligence per se also will be — but not necessarily the other way around. If your answer to this question is positive, then you have to review the state, city and county laws pertaining to dogs, such as the leash law, prohibition against trespassing, prohibition against running at large, and the dangerous dog law.
  • Is there an advantage of using a premises liability theory of recovery in your state, and if so, what are the elements of the cause of action, and what special proof is required?
  • Does your state make a landowner, landlord or property manager responsible, under some circumstances, when a tenant’s dog bites another tenant or guest? What are the conditions for such liability?

There is one universal principle in dog bite law, which is that an owner who has knowledge that his dog possesses the tendency to viciously bite people will be held liable for all bites upon people. The states differ as to whether there is any defense to such liability. The common law said no, that even a trespasser or person who provoked the dog could recover, because the owner of such a dog became essentially an insurer. However, this absolute rule of truly strict liability has been softened in many states.

Exactly where did the attack take place?

Most dog bite statutes require the victim to prove that, at the time of the bite, he or she was in a public place or lawfully in a private place (including the property of the owner of the dog). To put it another way, it can be difficult or impossible for a trespasser to receive compensation for a dog attack.

In a claim based upon any ground other than the dog bite statute, the significance to the location of the attack will establish venue and perhaps provide a cause of action against the owner of the property itself, on a premises liability theory.

What was the victim doing immediately before the attack?

Trespassers and people committing crimes generally cannot make a successful claim for their injuries.

A person who provokes a dog generally cannot receive compensation. The definition of “provocation” is tricky — usually, it means that someone more than 5 years old physically injured the dog. However, the states differ as to the definition of provocation as well as the minimum age (if any) of the victim who may be barred by the doctrine. Additionally, there are some states having cases which hold that the provoker can be someone other than the victim.

A person engaged in providing a service to the dog (i.e., a veterinarian, veterinary technician, trainer, groomer) cannot make a claim because he or she is deemed to have assumed the risk of injury by the dog. However, this rule is not absolute, and has been limited by the courts.

What was the dog doing, and how was it being restrained or handled, immediately before the attack?

Among other things, was the dog restrained at all? If so, by what? And by whom? Compare the nature and type of restraint to your state’s anti-chaining/tethering law, if there is one. Also compare it to the leash law.

Was someone doing something that might have gotten the dog overly excited, afraid or angry?

Where did the dog come from? Sometimes a dog owner will deny that it was his dog, but if it came from his backyard then it probably was his dog.

What happened immediately before, during and after the attack?

The facts of the attack will suggest the legal basis for the claim, the precise people who are responsible for the victim’s injuries, the witnesses, and raise (or shed light on) a number of other issues.

Did the dog actually bite the victim?

Many dog bite laws specifically refer to a “bite.” Bites usually break the skin, but sometimes they do not. See the discussion regarding what constitutes a “bite” in What Is A Bite. If the dog injured the victim in any other way, and if the applicable state, county and city laws apply only to “bites,” then the victim will have to prove that the dog owner or handler was negligent or that some other cause of action applies, such as premises liability.

Is it clear which dog bit the victim? For example, a person who breaks up a dog fight might not be able to identify exactly which dog bit him. There are ways to prove it, ranging from the obvious (the pattern of lacerations might match only one of the dogs) to the exotic (DNA testing of saliva found in the victim’s wounds). If it cannot be proved, however, the dog bite statutes might be inapplicable, although the victim might recover on a negligence theory.

In your opinion, why did the dog attack the victim?

Although the law is not concerned with a dog’s “reasons” for attacking a person, it is important to articulate the reasons why the attack happened, because those reasons can suggest the identity of the persons to be held responsible, and whether the dog owner might have a defense. Also, this question frequently elicits important information that sheds light on the cause of the incident.

Has anyone expressed a contrary opinion? If so, what was it, and who said it?

The dog owner often places blame on the victim. (Remember the Diane Whipple death case, in which the owners said that the dog killed the victim because she was wearing some kind of provocative perfume?)

Witnesses and animal control officers may also shed light on issues that will impact the claim. They might blame someone other than the victim (for example, a different person might have injured the dog shortly before the attack), or might blame the victim himself.

In your opinion, who was responsible for the attack (meaning responsible in a practical sense, not necessarily a legal responsibility)?

The victim frequently can direct a claim to other possible defendants, including employers, landlords, day care operators, trainers and breeders. It even would be possible to make a claim against someone who negligently entrusted a dog to someone who could not control it, like a child — or who negligently supervised a child who, because of the negligent supervision, got bitten by a dog.

Claims against people other than the owner might be crucial under certain circumstances, such as when the dog owner lacks insurance.

Has anyone said that the victim or someone else was responsible in some way? If so, what reasons were given, and who said it?

Was the dog off the property of the dog owner? If so, was the dog unleashed? If it was unleashed, do you know whether there was a leash law where the attack happened?

You can find this out by getting a copy of the dog laws from the city clerk. To research it directly, click here and then scroll to see the links under the topic Municipal Codes.

Violation of leash law (sometimes incorrectly referred to as a “running at large” law, which technically is different) usually constitutes “negligence per se,” which is a variety of negligence.

Has the dog ever bitten anyone before this?

This is important information in most cases, but it can be critically important when the accident happens in a “one bite state.” In a “one bite” state, the sure and usually easy way to establish liability is to prove that the dog previously bit another person viciously (meaning that the bite was not provoked). What do you know about the history of the dog? Did it ever bite anyone before this? See The One Bite Rule and Investigating the Attacking Dog.

In statutory strict liability states, it sometimes is important to know whether the dog has a prior track record of biting people, and it sometimes is useful to know about bites that happen after your accident too. For example, if the dog owner says that the victim provoked the dog, the dog’s history of biting people might tend to prove that the dog is likely to bite even without being provoked.

If the dog owner does not have insurance, it can be critically important to prove that the dog had a history of biting, because of the possibility of bankruptcy. By declaring bankruptcy, an uninsured dog owner can get out of paying for the dog’s damage. However, if the dog is known to have bitten people before this accident, there is sometimes a way to prevent the dog owner from getting a discharge in bankruptcy as to this claim, on the basis of willful injury. See Bankruptcy and Dog Bites.

What did the dog do, and where did it go, immediately after the attack?

If the dog had to be dragged from the victim, or bit the victim more than one time, then the attack was predatory, implying that the dog owner probably knew that the dog was dangerous.

If the dog ran into a backyard or a house, then the resident probably was the owner of the dog.

Can you identify the owner of the dog? If not, did the animal control department or police department do an investigation (because they might have found out the name of the dog owner)?

An animal control investigation is very important to a dog bite claim, but is far from essential. Some of its importance to a dog bite claim is to identify the dog and the owner of the dog.

Did the dog owner have homeowner or renter insurance?

In order for your efforts to be successful, the dog owner (or other responsible person) has to have either insurance or a lot of money. See Insurance for the Dog Owner.

If an insurance company (other than your own) has contacted the victim, the answer is yes. However, keep in mind that there is a possibility of only limited insurance. There may be a very low limit, applicable only to injuries inflicted by animals.

Eventually you may have to ask the dog owner for his or her insurance information (homeowner insurance or renter insurance). A few states require that this information be disclosed if a proper request is made, but in most states it has to be demanded and sometimes it is necessary to file suit to get it.

Find out whether the dog owner owned the house that he or she lived in. Go to a website like BackgroundChecks.org and type in the address of the dog owner. If the dog owner is a homeowner, there is a greater likelihood that insurance will be available.

Beware of the dog owner who has insurance that excludes coverage for canine accidents! The insurance industry is trying to sell policies that do not cover dog bites. If a dog owner has this kind of a policy, he or she is not insured unless there is an umbrella policy that does not have a dog bite exclusion.

Is there anyone else who is liable and may be insured?

All too often the dog owner is an uninsured renter or a person with insurance that excludes animal-inflicted injuries or has a low limit for them. The victim may have come to you because the dog owner told him the problem from the beginning. If the injuries and the circumstances sound compelling, you have to find another liable party with insurance. Ask the victim:

  • Did someone else also own this dog on the date of the attack?
  • Is the dog owner someone who just got out of a relationship or a marriage?
  • Was the dog used in a business?
  • Was the person who had the dog on an errand for someone else?
  • Was the person who had the dog working at the time of the attack?

If the dog was running loose —

  • Who let the dog out? The gardener, a house guest?
  • Did the dog break through a fence? Whose fence was it? Did someone repair the fence wrong? Was it the wrong kind of fence?
  • Did the dog break its chain or leash? Where did the chain or leash come from? Was is warranted as being able to contain this type and size of dog?

Where is the dog now? If the dog is living, do you want the dog to be put down, or the dog owner to face charges in the criminal court or “dog court”?

In some cases, it is advisable for a client to be represented by an attorney in connection with a “dog court” proceeding. See Dog Bite Victims Need an Attorney for Dog Court.