Doesn't My Dog Get One Free Bite?

DOG-OWNER LIABILITY IN INDIANA

According to the Humane Society of the United States, pet ownership has tripled in our country since the 1970's, and as of 2012, 62% of all American households now own pets. Of those, 47% own at least one dog. (Pets By the Numbers, Humane Society of the United States, January 20, 2014). So, with essentially half the households having dogs, an overview of the law on dog-owner liability is worth a review.

Let's start with the common law principles of negligence. Many people are familiar with the old adage that "every dog gets one free bite." To illustrate, imagine this scenario: to shed a few pound you pick up over the holidays, you start jogging along a local public walking trail. You aren't alone; you see that no matter what day it is or the time of day you go, others are strolling, running or rollerblading, and several are walking their dogs. Then one pleasant afternoon as you pass a lady coming the opposite direction being tugged along by an excited 80 pound Rottweiler at the end of a lead. Right before you meet, you mutually perform the obligatory, knowing nod (all joggers know this secret greeting), but before you break eye contact, you are suddenly thrown to the ground and with a growling dog's teeth buried deep in your wrists as you instinctively fend off his advances toward your throat. Not a good day. In the end, you have 73 stitches in both arms, two broken fingers, $5,800 in medical expenses, a lot of pain, and have three weeks of lost wages from your job as a brick mason.

Can the dog owner be held liable for your damages? The general rule that "every dog gets one free bite" was the starting point in the common law analysis. In other words, if this was the first time the same dog had ever attacked, then generally, no, you had no recourse. But if the dog attacked someone else the next day, that second victim could recover. At first blush, this seems to make no sense at all. Why is this? The law of negligence can generally be stated: "one is liable for harm caused to another person if he fails to act or take some precaution that a reasonable person would have done in the same or similar circumstances." If the dog owner had walked her dog in public, passing hundreds of people, every day for past 6 years without incident, she would have had no reason to believe that her dog may pose a danger to other pedestrians. However, once the dog had viciously attacked another person without provocation, then she is "on notice." A reasonable person would then know, or should know, that the dog is capable of attacking and injuring innocent people without provocation, and she would need to take reasonable precautions to see that it did not happen again.

So the point about "one free bite" was not so much about the dog, but about the owner-and what he or she knew about the dangers her dog posed. The Indiana Supreme Court has issued an opinion that supplemented this "on notice" idea. In the case Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003) the Court did not do away with the "one free bite" concept, but complemented it with the idea that there are certain classes of dogs that are known to be aggressive by nature. Owners of these dogs are not free to assume that their dog is harmless unless it proves otherwise. They are "on notice" from the outset that their dog is of a breed that is naturally inclined to be aggressive and attack. Therefore, there is no free bite. "The rule is that the owner is bound to know the natural tendencies of the particular class of animals to which [the] dog belongs." Ross, 605 N.E.2d at 788 (emphasis added). If the propensities of the class to which the dog belongs are the kind which one might reasonably expect would cause injury, then the owner must use reasonable care to prevent injuries from occurring. Id. (No exhaustive list of breeds was extended to us by the Court, but certainly Rottweilers, Chows, and Pit Bulls should come to mind).

In 2008, more certainty was lent to this area of law when the Indiana State Legislature passed the "Liability for Dog Bites Act." This law provides additional civil and criminal penalties in certain cases.

The part providing a right to civil damages gives only certain classes of people the right to sue and recover damages. Section 3 of the Act, (I.C. 15-20-1-3) places civil responsibility on the owner of a dog that:

(1) without provocation,

(2) bites and injures

(3) a person who

(a) is acting peaceably;

(b) is in a location he/she is required to be by legal duty (or postal regulations)

(4) even if the dog had never previously behaved viciously;

(5) or the owner had no knowledge of a vicious propensity.

In the case Cook v. Whitsell-Sherman, 796 N.E.2d 271 (Ind. 2003), the Indiana Supreme Court interpreted this statute to mean that owners of dogs who attack public servants, such as postal carriers, are subject to strict liability for the damages from such attacks. Keep in mind, however, that this statute does not provide such protection for everybody. That is not to say that a neighbor cannot recover for an attack by the same dog. It simply means that such parties are left with the traditional nuances of the common law of "negligence" to prove a case and recover damages.

Section 4 of the statute provides criminal liability (fines and/or jail) against the owner in certain cases. I.C. 15-20-1-4 states that if an owner knowingly fails to take reasonable steps to restrain a dog that enters someone else's property and bites or attacks someone, the dog owner is guilty of a Class C Misdemeanor. Each subsequent offense elevates the level of a crime, all the way up to a Level 6 Felony-or even a Level 5 Felony if the person is killed. Finally, the offense is only an infraction for non-aggressive dogs that wander onto wooded or agricultural land of another person. (However, that there is no infraction for dogs accompanying their owner who happens to be hunting at the time). This criminal liability does not apply to government-owned dogs.

The Act has special rules for wolf and coyote hybrids. These animals must always be confined in a building or secure structure, and when out with the owner, must be on a leash no more than 8 feet in length. There is criminal liability for owners of these hybrids if the dog escapes and enters the property of another person and attacks livestock or even damages other personal property.

Finally, all dog owners should make themselves aware of any City or County Ordinances that may provide additional regulations on the handling and keeping of dogs. The violation of any such regulations (whether state law or local ordinance) may give an injured party the right to recover in a civil lawsuit against the dog owner. If such regulations are in the nature of "safety" rules, and the injured party is in the class of persons that the ordinance sought to protect, then liability may ensue from the violation alone under the doctrine of "negligence per se", regardless of any vicious propensity or prior bites given knowledge to the dog owner.

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