Statutory Liability Without Physical Contact

An interesting issue arises in states where the dog bite statute does not refer to a “bite” and the dog does not even come into contact with the victim. For example, New Hampshire Rev. Stat. Ann. § 466:19 makes dog owners strictly liable for damages caused by a dog’s “vicious or mischievous acts.” The question is whether this requires that the dog actually come into physical contact at all with the injured person.

The Supreme Court of New Hampshire held N.H. Rev. Stat. Ann. § 466:19 has answered in the negative, ruling that no physical contact is necessary where the dog’ actions are mischievous. In the case of Bohan v. Ritzo (1995), a man was riding his bicycle when he saw a small dog running toward him. He stuck his leg out to ward off the dog, lost his balance, and fell, suffering severe injuries. He sued the dog’s owners, alleging violation of the statute. A jury awarded plaintiff damages. Affirming, the state high court rejected defendants’ argument that a simple encounter with a dog is insufficient to support a claim under the statute. Plaintiff’s allegations were sufficient to establish that the dog’s actions had been “mischievous,” the court said. Moreover, the court noted plaintiff had not relied on the mere presence of the dog, but had alleged specific mischievous actions that caused his injuries.

The court also rejected defendants’ argument that the statute requires an actual bite or other direct contact, noting that nothing in the statute’s plain language limits its application to those situations. If the legislature had intended to limit strict liability to cases where a dog’s vicious or mischievous acts include an actual bite or other physical contact, it could easily have worded the statute to that effect, the court reasoned.