DOG BITES: THE LAW & POTENTIAL DEFENSES

by Amy Narayan June 10, 2022

DOG BITES: THE LAW & POTENTIAL DEFENSES

In California, the doctrine of strict liability is applied when a dog bites a person. Strict liability is the imposition of liability on a party without finding fault.  It is used when a situation or circumstance is considered “inherently dangerous.” In a strict liability case, the injured party only needs to prove that a tort occurred and that the defendant was responsible.  With respect to a dog bite case, a plaintiff must prove that (1) they were bitten by a dog and (2) the defendant owned the dog. They do not have to show that the dog owner was negligent.  They don’t even have to prove that the dog had vicious tendencies. This is because dogs, and animals in general, can be unpredictable, making owning them inherently dangerous.

California has a specific “Dog Bite Statute.” California Code of Civil Procedure section 3342 states, “(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.”

For example, suppose an Amazon delivery person comes to your door unexpectedly to deliver a package and startles your dog resulting in a dog bite. In that case, you will still be liable for any injuries sustained because he was on your property lawfully performing a duty. Permission to enter your property is implied when you order a product online for at-home delivery. However, permission is not implied if someone trespasses onto your property, such as a solicitor or a door-to-door salesperson. In this situation, a dog owner can make the affirmative defense of “assumption of the risk” since the trespasser was not lawfully on the property (see later in this article for more on the “assumption of the risk” defense).

The only other defense available to limit damages to California’s strict liability statute is provocation. Provocation may be defined as any action by a person that causes the dog to immediately engage in a response that is motivationally different from the response it was engaged in just before the person's action. In other words, the person’s action must immediately cause a radical change in the dog’s behavior. An obvious example would be if someone hit or kicked a dog without reason. Depending on the circumstances, courts might also relieve a dog owner of liability when a victim unintentionally provokes a dog by accidentally stepping on its tail or petting it while it is eating.

Another common question for dog owners is, “Can I recover my vet bills if another dog bites my dog?” There is no strict liability standard applied to a case where one dog bites and injures another dog. In this case, the courts will follow standard liability rules, and the injured dog owner must prove that the biting dog’s owner was negligent.  Many cities in California have mandatory leash laws on public sidewalks, parks, trails, and the beach. If a dog is running around a park unleashed in these cities, it will be reasonably easy to prove negligence, especially if the owner is present at the park. Proving negligence may be more difficult if a dog runs away from home without the owner’s knowledge and has an altercation with another dog. In such cases, the injured dog owner could still show negligence if they can show that the owner knew or should have known that the dog had the ability/propensity to run away and should have been adequately kenneled or secured.

An affirmative defense is a defense in which the defendant introduces evidence that, if found to be credible, will negate liability, even if it is proven that the defendant committed the alleged act.  While affirmative defenses cannot be raised in a human's strict liability dog bite case, they can be raised in situations when a dog bites another dog. Assumption of the risk is an affirmative defense that a defendant may raise that bar or limits a plaintiff’s claim for damages for injuries sustained to their dog when they voluntarily exposed the dog to a known danger. An example would be if you went to a dog park or dog beach, where dogs are known to be running off-leash or unsecured, even if you have your dog on a leash. In that case, it is assumed that you knew there was a chance that your dog could get into an altercation with another dog, especially since dogs can be highly unpredictable. If a human is bitten, the case falls under strict liability. However, the case falls under a usual negligence standard when a dog bites another dog, with the affirmative defense of assumption of the risk available to the defendant.  

An additional affirmative defense available in a case involving a dog biting another dog is contributory negligence. Contributory negligence reduces a defendant’s civil liability when the plaintiff’s own negligence contributed to the plaintiff’s injury. For example, suppose the defendant’s leashed dog injured the plaintiff’s dog, who was unleashed. In that case, the defendant may be able to raise the affirmative defense of contributory negligence to bar or limit damages, especially in a city with mandatory leash laws. 

Remember several important things to preserve your rights to file a claim if you or your dog are bitten and injured by another dog. First, even if the skin is not broken, it is essential to photograph any marks, tears on clothing, or injuries to your dog. Second, it is necessary to file a report with local Animal Control. Just as in a car accident, there needs to be a formal report made to document the incident. Animal Control will then conduct an independent investigation, including interviewing any witnesses to the incident as a neutral third party. It should be noted that California has another state law that makes dog owners responsible for taking “reasonable steps” needed to “remove any danger” of future attacks when their dog has bitten someone in the past. Animal Control maintains these records. Third, if the skin is broken or your dog has any injuries, you and your dog should get medical treatment to avoid infection and vaccinate against any diseases. Save all medical reports, bills, and receipts, including those from the vet. If litigation commences, you will likely have to provide all veterinary services and records on your dog, so be sure to have those readily available. 

Even in a strict liability state like California, dog bite cases often involve unique factual circumstances, and the rules on legal defenses are complicated. If you face a lawsuit over an alleged injury caused by your dog, you will need an attorney experienced in this area. If another dog injures you or your dog, you should strongly consider consulting an attorney to walk you through the steps necessary to ensure that you are compensated for your damages, pain and suffering, and any injuries to your beloved “best friend.”





Amy Narayan
Amy Narayan

Author



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