Negligence

In every jurisdiction, a person is liable for all losses and damages that result from his or her negligence. With certain exceptions, dog owners, people who handle dogs, people who harbor dogs, and everyone else connected in any way with a dog can be held responsible if their negligence causes injuries.

Negligence is usually defined as an unreasonable action, or unreasonable omission to take action. An example of an unreasonable action would be a dog owner letting go of his dog’s leash when another dog approaches, so that the dogs can “play.” An unreasonable omission might be the failure to keep a dog away from guests, where the dog is known to play too roughly and knock people down. When an adult invites a child into the adult’s home, the courts of many states say that a “special relationship” exists between that adult and child, requiring the adult to take more precautions than if the guest was an adult.

Another form of negligence is called “negligence per se.” It refers to the consequence of breaking a law designed to prevent harm to people. For example, failing to abide by the leash law constitutes negligence per se if, because the dog is unleashed, it causes harm to a person. See Legal Brief: Negligence Per Se for details. 

The negligent act or omission to act must be the proximate cause of the losses. Proximate cause is a unique legal concept. Basically it means that the harmful result must be closely related to the negligent act or omission. For example, if a dog digs under a fence and gets out and hurts someone, that will be considered the fault of the dog’s owner, and that negligence would be considered the proximate cause of the harm inflicted. However, if the dog gets loose and the victim, seeing it running around, decides to walk around the block but gets a heart attack because of the walk, there would be at least a big legal battle over whether the loose dog was the proximate cause of the heart attack.

The victim must be a person to whom the dog owner owes a legal duty. For example, the mother of a child victim who is bitten in the mother’s presence is a person to whom a duty is owed. However, the child’s best friend who was not a witness to the attack is not owed a duty even though he or she might suffer terrible emotional distress as a direct result of the injuries to the best friend.

The victim sometimes is as negligent as the person handling the dog, and that negligence will hurt the possibility of receiving full compensation for the handler’s negligence. For example, if the victim is walking his dog without a leash, and the handler of the attacking dog also is walking her dog without a leash, and the victim is injured trying to keep the dogs from fighting, it is probable that the victim will be held responsible for some part of his own injury. The consequence of such negligence depends on the law of the state where the accident happened:

  • Most states apply the law of comparative negligence. The victim’s degree of negligence is compared with the defendant’s degree of negligence. For example, in the above situation, the victim might be regarded as 50% responsible for his own injury. Therefore, he would receive only 50% of the monetary value of his losses and damages.
  • Some states apply the law of contributory negligence. This is an older doctrine that is applied differently in different states. The ancient variation is that even 1% fault on the part of the victim will reduce his claim to nothing! The modern variation is that 50% or more fault on the victim’s part destroys his claim, but less than 50% simply reduces it.

Some people are responsible for the negligence of others. In other words, some people have to pay for losses that they do not cause. This is called respondent superior. Examples are:

  • Employers whose employees are negligent during the course and scope of their duties for the employer.
  • People who direct the actions of someone else and expose them or the public to the risk of harm, or a greater risk of harm than usual.

There are exceptions to the usual rules of negligence:

  • A government agency or employee can be sued for negligence only within the rules established by the government entity. In other words, if the government has not consented to be sued for something, it cannot be.
  • A young child may be deemed incapable of negligence. For example, an 18-month-old baby will not be held comparatively negligent for pulling the tail of a dog.

Some victims cannot sue for negligence. Generally, people who assume the risk of injury cannot sue after being injured, because they are deemed to have consented to the injury. For example, veterinarians, their employees, and canine professionals generally cannot sue for dog bites while the dog is under their custody and control, unless the dog owner did something out of the ordinary that resulted in the injury, said something misleading, or failed to warn that the dog was a “demon dog.” This is generally referred to as the “fireman’s rule” or even “veterinarian’s rule.”

Lay persons need to understand that issues pertaining to negligence are complicated and generally beyond the scope of lay understanding. It requires an experienced tort lawyer to render a reliable opinion as to whether an act or omission constitutes negligence. A good discussion of the varieties of negligence and related concepts can be found in Seo v. All-Makes Overhead Doors (2002) __Cal.App.4th___ .