Today, more Americans have dogs than ever before. As dogs have become more and more common, states and cities have struggled with balancing the rights of dog owners with the right to redress of dog bite victims. This has resulted in both statutes being passed and “common law”—the law developed by courts deciding cases and defining aspects of the law—evolving to address injuries involving dogs. Below is an overview of issues involving dog bite claims:
Strict Liability Claims
States take differing approaches to strict liability claims for dog bites. These types of claims will apply liability to the owner of a dog, regardless of how careful the owner was in protecting from bites. In all states, owners of “wild animals”—meaning any animal that is not allowed to be kept in a residentially zoned area—are always strictly liable for injuries resulting from the dangerous characteristics of those animals. For dogs and other domesticated animals, states can be either “one bite states,” “statutory strict liability states,” or a combination of the two.
One Bite States
Kansas is one of fourteen states that applies the “one bite” rule. This is the traditional rule under common law. It will control when a state has not passed statute and the state’s highest court has not adopted a new rule. In these states, a dog owner is strictly responsible for injuries caused by the dog only if the dog has dangerous behaviors, the owner knows about these behaviors, and the behavior causes injury to the victim. Thus, a dog generally gets “one free bite” in these states: after that first bite the owner will know of the dog’s dangerous behavior. As the court explained in Mills v. Smith, a first bite is not necessary to apply strict liability when the owner otherwise knows of the dangerous tendencies. If the owner has seen aggressive behaviors from the dog, such as growling and charging at people, the owner may be put on sufficient notice of the dog’s dangerous behavior even without a first bite.
Statutory Strict Liability States
Most states have dog bite statutes that override the traditional one bite rule. These states include Missouri (RSMo § 273.036) and Colorado (C.R.S. § 13-21-124). These statutes impose strict liability for all dog bites, even if the dog has never bitten before. Basically, domesticated animals are treated just as wild animals are in these states. It is important to note that each state’s statute is different and applies slightly differently. Common variations include limiting damages that can be collected without prior knowledge of dangerous behavior and offering defenses of provocation by the person bitten to overcome liability.
Mixed Statute States
The final group of states is the smallest: mixed statute states. These six states limit strict liability to specific circumstances. The circumstances are different for each state, but are more favorable to dog bite victims than one bite states. For example, Georgia follows the one bite rule plus imposes strict liability for dog bites that occur when the dog has gotten free, even if the owner was as careful as possible to prevent the dog from escaping.
Outside of strict liability, a dog owner can be liable for injuries caused by a dog through a negligence claim. Unlike strict liability, all states allow for a victim of a dog bite to recover for negligence. These claims require that a dog owner has failed to exercise reasonable care in supervising the animal. When this failure to properly supervise results in injury, the dog owner will be responsible for these injuries. Common examples of how a dog owner can fail to exercise reasonable care in supervising his or her dog is by failing to keep the dog on a leash during walks or leaving the gate of backyard fence open, allowing the dog to escape.
A premise liability claim can also be used to compensate for a dog bite injury. A property owner is liable for the safety of guests on the property. Under Kansas law, this requires exercising reasonable care in regards to known dangers. A dog can qualify as a known danger to form the basis of this type of claim. A property owner must take reasonable steps to warn or protect from the dog when it is known to be dangerous. For example, the property owner may need to place the dog in a separate room or kennel when visitors arrive.
Negligence Per Se
A final way to seek redress for injuries caused by dog bites is through a claim of negligence per se. This type of claim is based on a violation of a law, whether a state statute, county or municipal ordinance, or even regulation. If the dog owner violated a law and that violation results in an injury, this type of claim may apply. However, the law involved must have intended to prevent the type of injury suffered (a dog bite) from happening to the specific class of victim (a neighbor or guest). Negligence per se claims involving dog bites largely focus on one type of local ordinance: breed-restrictive ordinances.
Breed-restrictive ordinances outlaw certain types of dogs within counties or cities in Kansas. For example, Wyandotte County prohibits owning pit bulls via Section 7-219. These types of statutes can be fairly controversial. However, Overland Park’s ordinance banning pit bulls was upheld as constitutional in Hearn v. City of Overland Park. Having withstood a constitutional attack, these statutes are likely to remain on the books and valid unless removed via the political process.
When a dog bites an individual, the injuries can be extreme and severe. The law has long struggled with exactly how to allocate liability, and the clear divide on how state’s approach dog bite injuries shows that this struggle continues today. If you or a loved one are injured by a dog bite, it is important to contact capable legal counsel right away. Liability for injuries may turn on specific facts about the dog and its owner, and experienced legal counsel can gather this information quickly to get the redress you are entitled to.