If your dog bit someone, do not 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 on the topic, but there are a few common patterns and defenses, which we will discuss in this article. Your best option is to hire an attorney or, if representing yourself, research the law in your state.

Please read The Legal Seagull’s disclaimer. This podcast is neither legal advice nor a substitute for an attorney’s services. The laws in your jurisdiction may differ in significant ways.

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 bites result in minor injuries, dog bites can inflict serious injury. According to this article by the American Veterinary Medical Association, an estimated 4.5 million people are bitten by dogs each year. Of these cases, 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.”

Dog bites can be very expensive. The average claim rose to almost $40,000 in 2015.

 

One-bite rule

 

Although rare today, throughout history many states used the "one-bite" rule. Under this doctrine, an owner would not be legally liable injuries unless he or she had knowledge of the dog’s dangerous propensities, such as the dog biting someone in the past. In other words, the owner gets one “freebie” bite.

In modern times, an owner could still be held liable if he or she had knowledge (or reason to believe) that the dog was dangerous. This may be due to the dog’s history, breed, or past behavior.

While the one-bite rule is used in a small minority of states, two other legal theories are more common: negligence and strict liability.

Negligence

To prove liability for a dog bite injury under a theory of negligence, the victim must usually prove that the dog's owner/handler had a legal duty to use reasonable care to prevent injuries to others in public and those lawfully on his/her property. The general rule is that an owner owes a duty of care to prevent dog bite injuries to others; however, many states exempt (or limit) liability to people trespassing on the property. Depending on the state, the definition of “trespasser” differs tremendously, 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 will 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, it is not typically a defense that you took all precautions to prevent the attack.

In some states with strict liability, the victim must also prove that—prior to the attack—the owner knew the dog had a tendency to be dangerous (known as having "dangerous propensities"). This may include:

• Biting;
• Snapping;
• Snarling;
• Growling; and
• Fighting (humans or animals).

Generally, it is not enough to show mere barking, chasing cars, or even jumping on people.

Common Defenses in Dog Bite Cases

The defenses available to you will depend on your state’s laws. That being said, here are a few common defenses to dog bite lawsuits (note that they may overlap):

Statute of limitations

Statutes of limitation limit the time to file a lawsuit for a particular event or set of facts. Statutes of limitation cut off a party’s right to sue another party after a certain time period. 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, check to see 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.

Contributory/comparative negligence

Under this defense, the victim was negligent and caused (or contributed to) the victim’s 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., stepped on its tail, tripped over it, or hit it with a door);

Assumption of risk

The victim voluntarily and knowingly assumed the risk of a dog bite by engaging in certain conduct. This may include:

• Working in a profession where dog bites are likely and foreseeable (e.g., dog groomers, kennel workers, animal control, veterinarians);
• Approaching a dog known to be dangerous (e.g., growling, foaming at the mouth, history of aggression).

Provocation

The “victim” provoked the dog into attacking. This may include:

• Kicking, hitting, or punching;
• Chasing;
• Taunting, teasing, or yelling; and
• Straddling or riding.

Under these circumstances, you may have a defense to assert, even in states with strict liability.

Contact your homeowner’s insurance (or renter’s insurance) agent right away

 

If you have homeowner’s (or renter’s) insurance, contact your insurance company right away to report the claim. You may also need to submit a written declaration or affidavit. Many policies (but not all!) include liability coverage for injuries caused by your dog—even if the incident did not occur on 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 and documents presented. It will then determine whether to settle the claim or defend you in a lawsuit.

If you did not disclose your dog on your 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.

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