By, Julie I. Fershtman, Attorney at Law
Horse owners are often dog owners. While horse owners may concern themselves with liabilities associated with horse ownership, they may lose sight of liabilities associated with their dogs. Dog bites can cause serious injuries, and litigation can follow.
The Centers for Disease Control and Prevention has reported that about 4.5 million people are bitten by dogs each year. Dog bites and dog-related injuries generally accounted for more than one-third of all homeowners insurance liability claim dollars paid last year, according to the Insurance Information Institute.
This article discusses dog bite liabilities along with suggestions for avoiding legal disputes.
Dog Bite Strict Liability Laws
Most states have abolished the traditional “one-bite rule” (where dog bite liability required proof that the dog had a propensity for viciousness of which the owner or keeper was aware) and have enacted dog bite statutes. These statutes impose some form of strict liability on owners or keepers of dogs. Although statutes differ, they typically provide for the following:
- The animal owner (and sometimes, depending on the law, the animal keeper) is strictly liable for injuries inflicted by the dog without regard to whether the dog showed vicious propensities in the past.
- The injured person must not have been a trespasser and, instead, must have been injured in the location where he or she was lawfully permitted to be.
- If the injured person provoked the animal, he or she cannot recover.
Defense of Provocation
Lawsuits involving dog bites and dog-inflicted injuries, particularly in states with strict liability laws, often focus on the defense of provocation. Courts have disagreed on what qualifies as provocation. In one case, a court dismissed a case based on a finding that the plaintiff (the one who was injured) provoked the dog by unintentionally stepping on its foot. Yet, in another case, a court held that a jury needed to decide the issue of provocation where evidence showed that the plaintiff, a child, stepped on a dog’s tail immediately before being bitten. In an interesting case, dogs trespassed onto the plaintiff’s property and were about to attack the plaintiff’s cats. As the plaintiff kicked and pulled on the dogs while trying to protect her cats, one of the dogs bit her. The court ruled that she did not “provoke” the dogs, and her case could continue, because as the dogs were already in a “provoked state” at the time, and she did not cause the provocation before the bite.
By definition, a “trespasser” is someone who enters another’s property unlawfully. In dog bite cases, issues sometimes focus on whether the plaintiff had “implied permission” to enter the dog owner’s property under the circumstances and was not a trespasser. In one case, the plaintiff, a child, placed her hand through a fence in an effort to pet a neighbor’s dog but was bitten; the court ruled that she was trespassing, and her case was properly dismissed.
Comparative Fault of the Person Bitten
Usually in states without dog bite statutes, comparative fault of the injured person (such as contributory negligence or comparative negligence, depending on state law) is a defense to a dog bite case. A small number of states with strict liability dog bite statutes allow dog owners to raise this defense.
Among the many options available to avoid liability, here a few ideas:
- Certainly, liability insurance cannot prevent injuries, but proper coverage can protect you against financial consequences that may occur. Make sure you are properly insured for the consequences of a dog-inflicted injury claim or suit that could be brought against you. Also, make sure that your insurance coverage contains no exclusions for dogs in general or for a particular breed of dogs that you own or keep. Read your insurance policy carefully and/or discuss your coverage with your insurance agent or lawyer.
- Secure your dogs. Keep them under control.
- Follow ordinances and leash laws.
- Evaluate possible aggression. If you believe your dog has shown aggressive behavior, consider consulting with professionals, such as your veterinarian or a dog trainer, to evaluate this further, and take caution before allowing others to approach, handle, or keep your dog.
This article does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney.
About the Author
Julie Fershtman, a lawyer for nearly 30 years, is one of the nation’s most experienced Equine Law practitioners. A Shareholder with Foster Swift Collins & Smith, PC, based in Michigan, she has successfully handled equine cases in 17 jurisdictions nationwide and tried equine cases in 4 states. She has drafted thousands of equine industry contracts and is a Fellow of the American College of Equine Attorneys. Her speaking engagements span 29 states. For more information, visit www.equinelaw.net and www.equinelawblog.com.