In some cases, it is unclear whether the injury to the victim’s skin resulted from biting, swiping with the teeth, or clawing with a paw. Tears and scratches can come from a dog’s teeth or claws, and when the teeth are involved, the injury may or may not have occurred as the dog was attempting to close its jaws upon the victim. By swiping or moving its head in a quick manner, a tooth from the dog’s open mouth can cause injury. Arguably, such an injury might not be a “bite.” Clawing is entirely different than biting unless the manner of attack includes lunging with one or both forelegs raised during an attempted or actual bite.
Characterizing the dog’s action as biting, swiping, or clawing is often essential to determining whether a defendant is liable for the resulting losses and damages. A bite is an essential element in cases brought under dog bite statutes which specifically use the word “bite.” 9 of the 31 jurisdictions that have dog bite statutes make reference to a “bite.” The states that impose strict liability only where the dog’s action is a bite include Arizona, California, Colorado, Indiana, Michigan, Montana, Nebraska, New Jersey, and Washington. The jurisdictions that impose strict liability regardless of whether the action of the dog was a bite or something else include Alabama, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Massachusetts, Minnesota, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Utah, West Virginia, and Wisconsin.
The manner in which a dog inflicted injury is also an essential element of the common law cause of action for scienter. In common law cases where the prior act was a bite, liability in the current claim must be based upon a bite or something very close to a bite. Similarly, where liability is based on a dangerous propensity, both the prior and current acts must be substantially similar. Swiping at people with the mouth while playing may or may not be substantially similar to biting. Clawing might be substantially similar to biting if the manner of attack includes lunging with one or both forelegs raised, in which event clawing might well be considered as part and parcel of a certain dog’s dangerous propensity to attack.
Three legal issues, therefore, arise from such incidents. The first issue is which party has the burden of proof that the wound was inflicted by biting, swiping, or clawing. “Burden of proof” refers to the obligation to prove that an allegation is true or false. A party that has the burden of proof must produce sufficient evidence to convince the factfinder that the allegation is true or not. In a dog bite case based on a dog bite statute or ordinance which refers to a bite or a dangerous propensity to bite, the victim is required to prove that a bite occurred.
The second legal issue is what type of proof is admissible to prove that the action was a bite. Admissible evidence consists of testimony, a document, or another item of sufficient relevance and reliability to constitute a fair basis upon which to judge an allegation to be true or false.
There are several methods of proving that the action of a dog was a bite as opposed to something else. First, it is common knowledge that dogs normally close their jaws upon an object as opposed to waving their faces at it, brushing their whiskers against it, or striking it with their snouts. Being a matter of common knowledge, this does not require any evidence at all. The Restatement of Torts 2nd, section 290, establishes that all people are deemed to have knowledge of the “qualities and habits” of animals, including dogs. (“For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know (a) the qualities and habits of human beings and animals …. ” Restatement of the Law, Second, Torts, § 290.) Illustration (g) to section 290 states:
“A reasonable man is required to have such knowledge of the habits of animals as is customary in his community. Thus, he should know that certain objects are likely to frighten horses and that frightened horses are likely to run away. He should know that cattle, sheep, and horses are likely to get into all kinds of danger unless guarded by a human being, that bulls and stallions are prone to attack human beings and that even a gentle bitch, nursing her pups, is likely to bite if disturbed by strangers.”
The second method of proving that the action was a bite would consist of the absence of witness testimony that the dog’s face was going from one side to another or that its claws were raised at the time of the injury. Without such movements, it would appear clear the intention was to bite and the action in fact was a bite.
Another approach to proving that the action was a bite would be to rule that the existence of a wound, incurred in the immediate presence of a dog, should be presumed as a matter of law to have been inflicted by a bite. This ruling would be based upon the common knowledge that dogs normally close their jaws upon an object, rather than do the things mentioned above. The presumption could be considered rebuttable by evidence that the dog indeed only scratched or clawed the victim.
The third legal issue that arises from incidents in which it is unclear how the injury resulted could be regarded as a political or legislative issue, namely whether the dog bite statutes should eliminate any reference to a bite and focus instead upon the infliction of injury to the victim. The dog bite statutes of most states do not, in fact, require an actual bite. If the policy of the law is to protect people from injuries inflicted by dogs, encourage dog owners and keepers to be vigilant for the safety of others, and spread the burden of canine-inflicted injuries between the victims and the dog owners, there is no reason to limit the statutes to bite wounds.