If your dog bit someone, try not to panic. One of the first things you should do is educate yourself about your potential liability to the person injured. Each state has its own laws governing dog bite lawsuits, but there are a few common patterns and defenses through the United States, which will be discussed in this article.
Humans have kept dogs as pets for over 12,000 years. For at least that long, dogs have been biting people. In the United States, there are 70-80 million dogs—that’s almost 1 dog for every 4 people.
Although many dog bites result in minor injuries, serious injuries can and do occur. According to this article by the American Veterinary Medical Association, an estimated 4.5 million people are bitten by dogs each year. Of these, roughly 20% require medical attention. The Healthcare Cost and Utilization Project notes that “Common principal diagnoses for dog-bite related hospitalizations included skin and subcutaneous tissue infections; open wounds of extremities; open wounds of head, neck, and trunk; and fractures of upper limbs.” (And I thought only elephants had trunks…)
Dog bite injuries can be very expensive to treat. The average claim rose to almost $40,000 in 2015!
Here is a brief review of the legal doctrines concerning dog bite injuries:
Although very rare today, many states used to apply the “one-bite” rule, which held that an owner was not legally liable for dog bite injuries unless he had prior knowledge of the dog’s “dangerous propensities.” This really depends on the laws of each state, but often means that the dog previously bit someone. In other words, the owner gets one “freebie” bite. After that “freebie,” he is considered to be on notice of the dog’s dangerous propensities and may be held liable for future injuries.
While the one-bite rule is used in a small minority of states, many states have modified versions of the one-bite rule (again, this is very state-specific). Two other legal theories are more common: negligence and strict liability.
To prove liability for a dog bite injury under a theory of negligence, the victim must prove that the owner had a legal duty to use reasonable care to prevent injuries to other people—both in public and those lawfully on his property. The general rule is that a dog owner owes a duty of care to prevent dog bite injuries to others; however, many states exempt (or limit) liability for injuries to people trespassing on the property. The definition of “trespasser” differs tremendously among states, and may depend on such factors as whether:
- The property was gated, fenced, closed off, etc.;
- Warning signs (e.g., “NO TRESPASSING”) were posted;
- The person had a lawful basis to be on the property (e.g., mail carrier, delivery, police, etc.);
- The person was given implied consent to enter the property; and
- The age and maturity of the person injured.
Next, the victim would have to prove that the owner breached the duty by failing to use reasonable care to prevent the attack. As with everything, this depends on the state’s laws, facts of the case, dog breed, size, and history of aggression and prior attacks. It may involve some or all of the following:
- Failure to properly leash the dog;
- Failure to muzzle the dog;
- Failure to control the dog; and/or
- Violation of a statute or regulation (e.g., leash law).
As with any action for personal injury, the victim will need to prove that the breach of the duty of care caused the victim’s injuries.
Dog-bite statutes (AKA strict liability)
Many states have dog-bite statutes that impose strict liability for dog bites. Under this much harsher standard, an owner is liable for dog bite injuries even without proof that he or she failed to exercise reasonable care to prevent the attack. In other words, even if you took all precautions to prevent the attack (e.g., leashing, confining, controlling, etc.), you may still be liable, unless you can establish a legally-recognized defense. Defenses are discussed below.
In some states that apply the strict liability standard, the victim must also prove that prior to the attack, the owner knew (or should have known) that the dog had dangerous propensities. This may include:
- Growling; and
- Fighting (humans or animals).
Mere barking, chasing cars, or even jumping on people, are generally insufficient to prove knowledge of the dog’s dangerous propensities.
Common Defenses to Dog Bite Lawsuits
The defenses available to you will depend on your state’s laws. Here are a few common defenses to dog bite lawsuits (note that they may overlap):
Statute of limitations
Statutes of limitation place a time limit on a party’s right to file a lawsuit. If the victim sued you after the expiration of the statute of limitations, you can move to get the case dismissed.
If you are sued—or even threatened with a lawsuit—research what the statute of limitations is for dog bite lawsuits in your state. If you have any doubts, contact an attorney and set up a consultation.
Under this defense, the victim was negligent and caused or contributed to his own injuries. Here are some examples:
- Ignoring a warning sign (e.g., “VICIOUS DOG” or “BEWARE OF DOG”);
- Approaching the dog against your warnings; and
- Hurting the dog (e.g., stepping on its tail, tripping over it, or hitting it with a door).
When evaluating whether a victim was negligent, children are often held to a more lenient standard because they are less likely than adults to appreciate the danger that a provoked dog may attack. In most states, children below a certain age cannot be held negligent under any circumstances.
If the jury finds the victim partially or wholly negligent, the victim may be barred completely from recovering anything, or have his award reduced by the percentage by which he was negligent.
Assumption of risk
Under this defense, the victim voluntarily and knowingly assumed the risk of a dog bite by engaging in certain conduct. This may include, for example, approaching a dog known to be dangerous (growling, foaming at the mouth, history of aggression, etc.) or ignoring the owner’s warnings.
Generally, people who work in professions where dog bites are likely and foreseeable (dog groomers, kennel workers, animal control, veterinarians, etc.) are considered to have assumed the risk of injury by working in close proximity to dogs.
If a jury determines that the “victim” provoked the dog into attacking him, that may absolve the owner of liability. “Provocation” may include:
- Kicking, hitting, or punching;
- Taunting, teasing, or yelling; or
- Straddling or riding.
Under these or similar circumstances, you may have a defense to assert, even in states with strict liability.
Contact your homeowner’s (or renter’s) insurance right away
If your dog bites someone and you have homeowner’s (or renter’s) insurance, contact your insurance company right away to report a claim. You may also need to submit a written declaration or affidavit. Many insurance policies (but not all!) include liability coverage for injuries caused by your dog—even if the incident occurred outside of your property. Most policies require “prompt” notice of a potential claim, so do your best to notify your insurance company right away.
Once you have filed the claim, the insurance company will determine whether you have valid coverage. If the victim files a lawsuit or threatens you with legal action, your insurance company will conduct an investigation, including interviewing the victim, witnesses, and reviewing any photographs, documents, and medical records presented. It will then determine whether to settle the claim or defend you in a lawsuit.
If you have valid coverage, the insurance company will most likely appoint an attorney to defend you. Although it depends on your policy and the amount of your deductible, the attorney’s fees and litigation costs will typically be paid by the insurance company.
If you did not disclose your dog on your insurance application, or have a breed that is excluded under your policy, the insurance company may deny coverage. In that case, you will need to consider hiring an attorney or representing yourself.