A dwindling number of us may be old enough to recall the classic Peter Sellers comedy, “The Pink Panther Strikes Again.” In one hilarious scene, Inspector Clouseau checks into a hotel. On his way to his room, he sees a small dog lying on the ground. “Does your dog bite?,” Clouseau asks the man at the desk. The man says no, so Clouseau stoops to pet the dog, who immediately and viciously bites Clouseau’s hand. “I thought you said your dog did not bite,” Clouseau says. “That is not my dog,” says the innkeeper.
Approximately 65 million U.S. households own dogs, according to the American Pet Products Association, and there are 90 million dogs in the U.S. as of 2023. Every year, over 4.5 million people are bitten by dogs, and dog bite liability claims account for over one-third (1/3) of all homeowner liability claim dollars paid out—an astonishing $1.2 billion in 2023. Moreover, dog bite liability claims also represent a significant piece of subrogation dollars which are overlooked and not pursued in workers’ compensation or health insurance claims. It is axiomatic, then, that subrogation professionals should have a working knowledge of the variety of dog bite laws that exist across the fifty U.S. states.
Dog bite law is a unique combination of city and county ordinances, state statutory law, state case law, and common law. The laws vary from state to state and from municipality to municipality. Generally, if the dog owner knows that the dog has exhibited a tendency or intention to someday bite a person, liability can attach. This is known as “scienter” (knowledge or knowing) and is referred to as the “One Bite” Rule. Most states hold a dog owner responsible for negligence that results in any injury caused by a dog. This can take the form of general negligence or negligence per se (violation of a statute). Sometimes, the liability depends on whether the dog bite occurred on or off the owner’s premises, whether the injured party is a trespasser, invitee, or licensee. In other words, what was the purpose for being on the dog owner’s property.
Some states apply the Doctrine of Premises Liability when the victim is harmed on the dog owner’s property. Premises liability is a specific area of law that governs liability involving owners of property and landlords. Other states base liability on statutes which create liability in the absence of scienter, negligence, or intentional behavior. These are referred to as “statutory strict liability states” and vary from state to state. They sometimes hold the owner liable automatically if their dog bites somebody. In “strict liability” states, the dog does not get “one free bite” as they do in states which adhere to the “One Bite” Rule.
Still other states complicate matters by mixing and matching their laws. Some of these complicated dog bite statutes impose strict liability under limited circumstances or for limited types of losses, while relying more heavily on the “One Bite” Rule. The states having statutes which incorporate the “One-Bite” Rule are referred to as “mixed dog bite law states” or simply “mixed states”. For example, New York imposes strict liability only for a bite victim’s medical bills. To recover other elements of damages, he has to meet one of the other burdens discussed above.
A dog bite might also take place in public and not on the owner’s premises, such as at a dog park, a store, or while the victim is simply walking down the street. Different standards may apply under those circumstances, and a jury is the ultimate arbiter of whether or not a dog owner has been negligent and whether the dog owner’s negligence, if any, caused the injuries. As always, the answer depends on the individual facts of the case and the willingness of a jury to hold the dog owner responsible.
Dog Fright Claims
A ”dog fright” case is when a dog does not “bite” the plaintiff but instead, chases or frightens the plaintiff into running away or taking other evasive action and the plaintiff trips and falls or is otherwise injured as a result of his efforts to flee the dog. When the behavior or demeanor of the dog causes a reasonable person to take defensive action which results in that person’s injury, but no dog bite is involved, the facts of the case become very important. There are recoveries to be had in “dog fright” cases. They may be more difficult than “dog bite” cases because many states have statutes dealing with dog bite cases, but “dog fright” cases can be big. According to dogbitelaw.com, in one case, a jogger sustained brain damage while being chased by two Rottweilers, causing him to veer into the road and get struck by the side-view mirror of a passing truck struck him in the back of his head. A jury awarded $6 million against the owner of the dogs and the owner and manager of the golf course.
A Hawaii case involved injuries sustained by two plaintiffs while fleeing what was believed to be an imminent attack by a German shepherd dog, causing them to fall off a natural rock wall onto rocks some ten feet below.[1] In Hawaii, § 663-9 seems to establish strict liability by clearly eliminating knowledge of the dangerousness or viciousness of a dog as an element of proof. However, in another Hawaii Court of Appeals decision, the Court determined that the plaintiff must prove at least negligence on the part of the defendant.[2] The court noted that one of the reasons the dog owner kept the dog was to deal with the occasional ‘problem of trespassers“. In addition, the owner had knowledge of the dog’s propensities which gave him notice that someone was close enough to motivate the dog to bark and run. He owed a duty to control the German shepherd dog to prevent harm to that person.
In a New York case, a lawsuit was brought against a dog owner and the of New York for injuries sustained when the plaintiff slipped on snow-covered sidewalk after a German Shepherd dog emerged from behind brick wall on owner’s property and hurled itself at fence separating sidewalk and property. The court in Hubbell v. Iseke held that the right to harbor animals must yield to the duty of containing them in reasonable manner as to avoid harm that can befall unsuspecting persons, lack of a bite or any physical contact notwithstanding. The court added that owning and keeping a German Shepherd dog in an urban area requires the highest standards to be employed in protection of an innocent public, and that the owner had a duty to do other than erect fence knowing that it bordered upon sidewalk used by public and that his dog had propensity to charge at and frighten passing pedestrians.
In a Kansas case, the issue was whether the defendants could properly be held liable for personal injuries suffered by a plaintiff when, frightened by defendant’s “bouncy, pesky, yappy little dog,” he lost control of and fell from a bicycle.[3] The dog owners had been put on notice by numerous individuals that the dog had frightened people who passed along the street. The court held that the facts could support a finding of negligence.
In a Tennessee federal court case, the court allowed a lawsuit against a dog owner to proceed where the dog was not being aggressive, but the plaintiff tripped over the dog and was injured.[4] A 35-pound dog named “Bear” was owned by Steve Marshall, who lived next to a cabin owned and operated by Oak Haven Resort. Bear routinely wandered over to the resort and was fed by the guests. Marshall had a collar on Bear which read “Do Not Feed This Dog.” The plaintiff, Cramer, never asked Oak Haven to remove the dog from the premises, and one evening she tripped over the dark-colored dog laying on the porch at night and was injured. The porch lights were turned off and the plaintiff could not see Bear. The plaintiff sued Marshall and the Oak Haven, alleging: (1) Oak Haven was negligent for allowing the dog to hang around the property, and (2) Marshall was negligent for allowing the dog to leave his property and wander over to the cabin.
Cramer asserted that the common law has long recognized the special legal relationship between innkeepers and registered guests, arguing that Oak Haven was in a special relationship with her and owed her a continuing and affirmative duty to act for her protection. Cramer acknowledged that Bear did not attack her or act aggressively towards her. Oak Haven argued that it could not be liable under Tenn. Code Ann. § 44-8-413, which provides that a dog owner is liable for all damages, regardless of prior knowledge of dog’s vicious propensities, because it is not the dog owner and only dog owners have liability under Tennessee law. It argued that Oak Haven is liable because it habitually allowed the dog to come onto its property. Marshall argued he could not be held liable for negligence § 44-8-413 because the dog was on the premises with the permission and consent of the owner of the premises and was not “running at large.” The Marshalls state that because the dog was not running at large, Cramer was required to establish that they knew or should have known of the dog’s dangerous propensities, which everyone acknowledged was not the case. The court denied the defendants’ motions for summary judgment, stating:
There is evidence in the record that Oak Haven allowed Bear to roam on its property. Oak Haven asserts that it does not regularly keep the dog on its property, but this is a question of fact for the jury. When Plaintiff called to report the dog to Oak Haven, Oak Haven instructed her not to feed the dog and that the dog would go away. While Plaintiff did not specifically ask Oak Haven to remove the dog, the Court finds that such facts can be properly submitted to the jury to weigh and consider. Oak Haven asserts that Plaintiff must establish that the dog had a dangerous propensity of which Oak Haven was aware and cites to several Tennessee decisions holding the same. The Court disagrees with Oak Haven’s position because the dog’s dangerous propensities are irrelevant in the instant matter. As the Court has previously explained, all parties agree that Bear did not attack Plaintiff or act vicious toward anyone. See [Doc. 71 at 10] (“As this Court has already explained, Plaintiff was not bitten or attacked by Bear—she allegedly tripped over Bear. Whether Bear exhibited any dangerous behavior is irrelevant because it was not Bear’s behavior that caused the fall, but instead, the mere presence of Bear.”). Accordingly, the Court finds Oak Haven’s position not well taken.
The court also held that Oak Haven could not be held liable under the statute, because it was not the “owner” of the dog. With regard to the Marshalls, the court held that:
The Court finds that there are genuine issues of material fact as to whether the dog was “running at large” within the meaning of the statute. The jury should hear the testimony to determine whether Oak Haven gave permission for Bear to be on the premises. Thus, the Court agrees with Plaintiff that the question of whether Oak Haven’s actions and/or silence rose to the level of permission as contemplated by the statute is a factual question for the jury to decide. Further, as emphasized above, the Marshalls have two obligations under the statute: (1) a duty to keep the dog under reasonable control at all times, and (2) to keep that dog from running at large.[5] Accordingly, the Court finds that Plaintiff’s claim pursuant to Tennessee Code Annotated § 44-8-413 against the Marshalls may proceed to trial.
The court did, however, grant the defendants’ motions in part, indicating that the question of whether Oak Haven’s actions and/or silence rose to the level of permission as contemplated by the statute is a factual question for the jury to decide.
The difficulty in effectively subrogating dog bite and dog fright cases is being familiar with the variety of laws which govern the subject from state to state. MWL has compiled a subrogation chart detailing the law in all 50 states with regard to the liability of a dog owner for a dog attack which involves a dog bite.
It can be found HERE.
[1] Farrior v. Payton, 562 P.2d 779 (Haw. 1977).
[2] Hubbell v Iseke, 727 P2d 1131 (Haw. App. 1986).
[3] Henkel v. Jordan, 644 P.2d 1348 (Kan. App.1982).
[4] Cramer v. Oak Haven Resort, Inc., 32018 WL 4186392 (E.D. Tenn. 2018).
[5] Tenn. Code Ann. § 44-8-413(a)(1).
Ashton is a shareholder in MWL’s Hartford, Wisconsin office. For questions regarding the subrogation of claims paid as the result of a dog bite, please contact Ashton at akirsch@mwl-law.com.
