North Dakota permits a dog bite victim to recover compensation if he can prove that the dog owner knew his dog was vicious and was negligent in not preventing the accident. There is no strict liability for scienter itself when unaccompanied by dog owner negligence.
Sendelbach v. Grad (1976) 246 NW 2d 496 held that dog bite liability is based not on scienter under the common law but on a combination of scienter and negligence. In a case which involved a visitor who was bitten at the dog owner’s ranch, the Sendelbach court approved the following jury instruction: “If the dog’s traits or propensities are of a nature likely to cause injury the owner must exercise reasonable care to guard against and to prevent injuries or damages which are reasonably to be anticipated from the dangerous or vicious propensity of the dog.”
The Sendelbach decision reflects poor understanding of basic principles of dog bite law. The court literally rejected the entire body of common law pertaining to the cause of action for scienter because the justices missed the distinction between dogs that bite people and dogs that herd and/or bite other animals. All jurisdictions understand that biting people makes a dog vicious, but carrying out a duty to herd cattle or simply biting other animals is not necessarily vicious (but see A Propensity to Attack Other Dogs Means a Dog Is Dangerous to People in which Attorney Kenneth Phillips argues that a dog which attacks other people’s pets should be considered vicious). The scienter cause of action is based on a dog’s viciousness toward people, not other animals. The Sendelbach court, having missed this distinction, incorrectly rejected scienter as a ground for dog bite liability. The court’s solution was to conflate the scienter and negligence causes of action. In other words, the victim is required to prove the existence of a vicious propensity to bite, the dog owner’s knowledge of the vicious propensity, and the dog owner’s negligence in failing to prevent the bite injuries to the victim.
The court made another error with regard to defining “vicious propensity.” The plaintiff argued it was “a tendency of an animal to do any act which might endanger the safety of persons and property of others in a given situation, whether it be in play or in anger, or in some outbreak of untamed nature.” The court opined that “the dog’s traits or propensities are of a nature likely to cause injury” was “essentially the same as the requested instruction, with the possible exception of the latter’s reference to an ‘outbreak of untamed nature.'” However, “might” and “likely” are two entirely different calculations.
The Sendelbach court also based its decision on classifying the victim as a casual visitor to the dog owner’s ranch and therefore undeserving of protection against the dog. This fortunately was overruled by a later case, O’Leary v. Coenen (1977) 251 N.W.2d 746.
In Hart v. Kern (1978) 268 NW 2d 136, the state supreme court established guidelines for a dog bite case based on negligence. Hart involved an injury to a person because two dogs were known to fight each other, and the defendant suffered his dog to get loose, resulting in an attack on the plaintiff. The defendant knew the plaintiff was coming to the defendant’s house, for which reason the defendant decided to confine his dog in the garage. However, the garage door was not shut completely, and the dog got out. The court reversed summary judgment for the defendant, stating, “The fact finder must decide whether Kern’s knowledge of his dog’s ability to escape from the garage and his failure to warn Hart, under the circumstances, amounted to wanton or willful negligence.” The court also said that a jury would have to decide whether the dog owner knowingly expose the plaintiff to a “hidden peril.”
In conclusion, the judge-made dog bite law of this state should be corrected either with a proper dog bite statute (see Model Dog Bite Laws) or a well-reasoned court interpretation of dog bite liability.