Dog bite law is a unique combination of city and county ordinances, state statutory law, state case law (i.e., legal principles that result from specific lawsuits within the state), and common law (i.e., legal principles resulting from specific lawsuits from throughout the United States, usually as reported in authoritative legal works such as the Restatement of Law). The simplest explanation of the interplay of these laws can be found in Plain English Overview of Dog Bite Law, which might be regarded as the introduction to this section of Dog Bite Law.
The “dog bite law” of any particular jurisdiction therefore is determined by examining the jurisdiction’s civil, criminal and administrative laws. In general, civil laws provide monetary compensation for the victim, criminal laws impose punishment on the dog owner, and administrative laws create a remedy against the dog itself. For example, California’s civil code gives a victim the right to prosecute a “private animal control” case, so the civil and administrative areas overlap in that instance. (For more about “private animal control,” see Dangerous and Vicious Dogs.)
One thing that all English-speaking jurisdictions have in common is the old British “one bite rule.” This ancient law shields a dog owner or harborer from liability, civilly and criminally, until he has a certain degree of knowledge that his dog is dangerous or vicious. When he has this knowledge, however, criminal laws may impose serious consequences on the dog owner or harborer, such as jail time or a fine, animal control laws may impose euthanasia or conditions for retaining the dog, and the civil justice system makes the owner or harborer strictly liable for all losses and damages resulting from the bite. In fact, a person’s knowledge that his dog is a “biter” also exposes him to the possibility of having to pay punitive damages.
Most states (referred to as the “strict liability states”) and the District of Columbia have statutes which either eliminate or substantially modify the one bite rule, making dog owners (and sometimes harborers and keepers) civilly liable for all or most dog bites as long as the victim neither trespassed nor provoked the dog. In some states, liability is automatic, while in others there are conditions for or limitations upon it. Likewise, criminal laws and animal control laws may impose consequences upon the dog and its owner or harborer in a number of situations where the dog did not previously display viciousness toward people. Click here for a list of the strict liability states and a more detailed discussion of the legal rights of dog bite victims in the USA.
Sixteen states (the “one bite states”) do not have dog bite statutes. The one bite states follow the one bite rule. So do 4 other states (the “mixed dog bite statute states”) that have dog bite statutes which essentially incorporate the one bite rule. Click here for a list of the one bite states and a more detailed discussion of the legal rights of victims in such states.
Whether or not a state follows the one bite rule, liability usually can also result from the negligent handling or confinement of a dog, or the violation of a leash law or other animal control law intended to protect against bodily injury to people. Injuries caused by negligence make a dog owner, harborer or keeper liable in almost every state. Furthermore, recent court decisions have imposed liability on animal control departments and related public entities which failed to take action against dangerous dogs. Click here for more information about negligence and negligence per se.
A dog bite victim therefore may have a remedy or at least a voice in civil court, criminal court, and “dog court.” This section of Dog Bite Law will focus on the civil laws. Criminal and administrative remedies have their own requirements, and victims are frequently shocked to learn that the most horrific attacks are not prosecuted as crimes or animal control violations. To learn more about the other two areas of law, see Criminal Penalties for Dog Bites and Dangerous and Vicious Dogs (which covers animal control laws and “dog court”).
The dog bite statutes: features, limitations and defenses
American dog bite statutes vary widely in their requisites for liability and in their remedies. They may impose liability upon whomever had custody of the dog as well as its owner, apply to non-bite injuries as well as bites, limit their scope to only the victim’s medical bills, or provide for additional compensation if the dog previously bit a person. Because reasonable minds differ as to the circumstances that should result in liability, the courts have been required to interpret the statutes themselves as well as how the statutes affect other legal doctrines such as negligence.
While the majority of dog bite statutes impose strict liability based on ownership of the dog, a number combine concepts of negligence, common law strict liability, and/or violations of local law, sometimes causing great confusion even in the courts. Some of the most complicated dog bite statutes impose strict liability under limited circumstances or for limited types of losses, while relying more heavily on the one bite rule. The states having statutes which incorporate principles of strict liability plus features of the one bite rule are referred to as “mixed dog bite law states” or simply “mixed states.” One example is New York, which imposes strict liability only for a bite victim’s medical bills; to recover full damages, he has to satisfy the requirements of one of the other grounds discussed above. For that reason, the courts of New York have quite wrongly concluded that dog owner negligence does not exist under the law — a proposition that literally everyone would disagree with. New York is not alone in its judicial confusion: the courts of Hawaii, reviewing a dog bite statute that clearly created strict liability, ruled that the statute did not create strict liability (for more, see Hawaii.)
Some courts also have ruled that statutes that impose first-bite liability upon whomever had custody of the dog, or upon harborers or keepers, may prevent recovery by a victim who had custody, or was a harborer or keeper. If the statute is silent on this issue, the answer in any particular state will be found in court decisions. One example is Utah.
The usual defenses to dog bite claims are that the victim provoked the dog, was a trespasser, was negligent, consciously assumed the risk of being bitten, or was a canine professional who was deemed to assume the risk. When the victim is a child, another defense is that his parent negligently failed to supervise him, and therefore was a cause of the accident (however, this defense is usually limited to an extreme lapse of supervision on the part of the parent). In one bite states, the primary defense is that the dog never behaved viciously toward a human prior to the incident in question, or that dog owner did not have previous knowledge that his dog had vicious tendencies.
Because these defenses are based on state statutes or judicial decisions, the defenses are different from state to state; furthermore, any particular defense might not apply in a specific case because of the particulars of the law in the jurisdiction where the incident happened. It is necessary, therefore, to retain an attorney where the injuries are to the face, caused a disability, involved significant lacerations or avulsions, or caused death. (For more information, see Does an Adult Need A Lawyer For a Dog Bite Claim or, if the victim was a child, Should Parents Get a Lawyer For Their Injured Child. Also, if the victim was a child, see From Parent to Parent – An Open Letter About Using a Lawyer for Your Child.)
How to determine liability when the state does not have a dog bite statute
If a state does not have a dog bite statute, that state is a one bite state. In one bite states, legal responsibility is determined by the following principles:
- The first issue is whether the dog previously bit anyone. If so, then the dog owner / custodian is strictly responsible.
- If the answer is no, the second issue is whether the dog previously did something that should have put the owner / custodian on notice that the dog was inclined to bite somebody in the future.
- If that answer is no, we consider whether the person having custody of the dog at the time of the incident had violated any law pertaining to public health or safety, which was intended to protect people like the victim. An example would be a leash law, but there could be regulations such as those that restrict dogs from being in day care centers are beauty parlors. The violation of such a law would be considered “negligence per se.” In some states, like Georgia, the violation is not negligence per se but rather an alternate way of proving liability under the dog bite statute.
- If we cannot find negligence per se, we consider whether the accident was caused by negligence. For example, a dog that is habitually mistreated, or sick, or suffering from a painful disease is more likely to bite a person, even if the dog has never done so before. Negligence is a ground for liability in most but not all of the one bite states. Sometimes it is referred to as “premises liability” when the incident happens on the dog owner’s or custodian’s land.
- If the dog owner or custodian is not legally responsible, then we consider whether anyone else might be liable as a result of their negligence or knowledge of the dangerous propensity of the dog to bite people.
When the dog owner does not have insurance or resources
If the dog owner is unable to compensate the victim because of lack of insurance or resources, attorneys consider whether anyone else might be responsible because of their own negligence. An example would be a landlord who knows that a dangerous dog is living with a renter, but fails to do anything to control the dog or its owner.