One insurance company – State Farm – has referred to dog bites as a “serious public health problem.” In 2018 alone, one carrier paid $90 million in claims on roughly 3,500 dog bite incidents. According to the Insurance Information Institute, dog bites and other dog-related injuries accounted for an astonishing one-third (1/3) of all homeowner’s liability claim dollars paid out in 2017, costing almost $700 million. This isn’t chump change any more, and subrogation professionals need to take a serious look at pursuing subrogation in even some of the smaller dog bite cases – although most dog bite cases aren’t all that small, as it turns out.
According to the Insurance Information Institute, the average cost per claim nationally has risen more than 90 percent from 2003 to 2017, due to increased medical costs as well as the size of settlements, judgments and jury awards given to plaintiffs. In 2015, the Centers for Disease Control and Prevention indicated approximately 4.5 million dog bites occur each year in the United States. Nearly 1 out of 5 bites becomes infected. And in virtually every case, there is subrogation potential which needs to be looked into. The subrogation professional must be familiar with the various dog bite laws found in each state and be able to apply that law to the facts in first party dog bite claims with potential subrogation.
Dog Bite Cases
Dog bite law is a unique combination of city and county ordinances, state statutory law, state case law, and common law. The law varies from state to state. 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. 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. States often provide certain exceptions to liability, including if the victim is a trespasser, veterinarian, was committing a felony, assumed the risk, or if the dog was provoked by physical abuse or was a police dog.
MWL aggressively pursues dog bite subrogation cases, and a chart boasting a summary of laws regarding the liability of a dog owner for personal injuries or property damage cause by a dog bit can be found on our website HERE. But what about cases involving injuries sustained by a person who is frightened and/or chased by a dog but no bite takes place? Is a dog owner liable if a person is injured as a result of the dog but the dog does not bite anybody? 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” Cases
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.
In Hawaii, one 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. Farrior v. Payton, 562 P.2d 779 (Haw. 1977). 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 Hubbell v Iseke, 727 P2d 1131 (Haw. App. 1986), the Court determined that the plaintiff must prove at least negligence on the part of the defendant. 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.
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 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. Henkel v. Jordan, 644 P.2d 1348 (Kan. App.1982). 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 another type of case, the New York Court of Appeals decided two different suits arising from separate incidents in which bicyclists sought to recover damages from dog owners for personal injuries allegedly sustained when they collided with owners’ dogs. Doerr v. Goldsmith, 35 N.E.3d 796 (N.Y. 2015). In Doerr, the court held that the dog owners were not liable because they had no knowledge of vicious propensities and made a hard distinction between accidents caused by an animal’s “aggressive or threatening behavior” accidents caused by an animal an owner’s negligence in permitting the animal to wander off the property where it was kept.
However, dog owners are not responsible for all accidents and injuries involving dogs. In Connecticut, the Court of Appeals ruled in a case involving a police officer, who went to homeowner’s house in response to a complaint about a roaming dog and was injured when he lost his footing and slipped on ice and snow while standing next to the patrol car after the dog had been placed in the car. Demers v. Rosa, 925 A.2d 1165 (Conn. App. 2007). The office suited the dog owner, alleging that owner negligently permitted the dog to roam, thereby causing the officer’s fall and resulting injuries. The Court of Appeals held that the officer fell because of the ice and snow on the homeowner’s driveway and not because of the dog’s roaming free or even the dog’s presence at scene of the accident.
As with most subrogation cases, the viability of subrogating against a dog owner in “dog fright” cases depends on early and thorough investigation. Getting statements and photographs of the parties and independent witnesses is worth its weight in gold. Talking to a neighbor about a dog’s behavior can produce lots of great, eye-witness information that can be helpful when it comes time to prove a dog owner was negligent.
If you should have any questions about this article or subrogation in general, please contact Steve Smith at [email protected].
Stephen A. Smith is an insurance litigation attorney with Matthiesen, Wickert & Lehrer, S.C. His practice focuses on insurance litigation and subrogation, including automobile, property, workers’ compensation, and product liability. He is licensed to practice law in Illinois, Minnesota, and Wisconsin and is admitted to practice in all federal courts in Wisconsin, Illinois, and Indiana.