What does the law require?

A simple way to look at what must be done for a dog bite case is by examining the instructions given to the jury under Missouri approved Instruction 17.17 and modified by 37.01 and Jensen vs. Freely, 691 S.W. 2d 926 (Mo.App. W.D. 1985).

For a favorable verdict, the jury must find:

1. A dog owned, controlled, or possessed by the person being sued permitted the dog to leave the property without being securely tied, leashed, or secured, and
2. As a direct result, the plaintiff was harmed.

The law relating to dog bite cases is more complex than a simple look at the jury instruction.

How frequent are dog bite attacks?

Every year nearly 4½ million Americans are bitten by dogs. The Center for Disease Control indicates that this number does not include other house pet bites or unreported incidents.

20% of the 4½ million victims require treatment at a hospital or physician’s office. The CDC estimates over 31,000 victims need reconstructive surgery due to dog bites.

185,000 victims require medical treatment from dog bites every year. 368,000 of these dog bite victims require hospital emergency room visits. That is over a 1,000 people per day. (CDC and Prevention, non-fatal dog bite related injuries treated in hospital emergency departments, 2001).

How dangerous are dog bites to children?

Of all emergency room hospital visits by children, dog bites are the fifth most common.

A study by Weiss H.B., Friedman D.I., Koben, J.H. titled Incident of Dog Bite Injuries Treated in Emergency Departments, was published in the Journal of the American Medical Association in 1998.

The United States Consumer Product Safety Commission followed this study up with its own paper titled, Injuries Associated with Selected Sports and Recreational Equipment Treated in Hospital Emergency Departments for the calendar year 1994.

These studies indicate that dog bites are a leading cause of danger to children. Children are playing outside more than adults and have a tendency to go to areas other adults would not venture. Children lack  experience in handling animals and are thereby more likely to “walk into” a dog bite incident. 

 

 

 

 

What is the general law regarding who pays in dog bite cases?

The general law is from the common law of “torts.” This states that a victim must establish:

1. That the person who harmed the victim had a duty to the victim.
2. That the person that harmed the victim failed to perform that duty.
3. That failure to perform the duty directly caused damage to the victim.

Martin vs. City of Washington, 848 S.W.2d 489, 493 (Mo. banc 1993).

How common are dog bites?

Every year in the United States over 850,000 people go to medical treatment providers for dog bite cases. 350,000 of these victims go to emergency rooms. This has led the CDC to estimate 4½ million dog bite victims per year in the United States. This number of victims appears to rise every year. Between 35 and 42 people die each year in the United States from a dog bite.

Over $1 billion dollars of losses are reported from dog bites in the United States each year. Approximately 15,000 to 16,000 victims receive money compensation from homeowner’s insurance policies or renter’s insurance policies from a dog bite. This indicates a 2% compensation rate.

American insurers pay approximately $350,000,000.00 each year on dog bite cases. The average payout is approximately $29,000.00, which is a 50% increase from the previous ten year period. That figure indicates that less than one-third of the estimated damages from dog bites result in a compensation payment. 

What Dog Breeds are Considered “Dangerous?”

The most notorious dog breeds are reported as:

1. Pit Bull
2. Rottweiler
3. Presa Canario

These three breeds and mixes of them account for 3 out of every 4 dog bit attacks in the United States. This comes from a study of Merritt Clifton of Animal People titled Dog Attack Deaths and Maming, USA and Canada, September 1982 through November 13, 2006.

Naturally, any dog can bite. The reasons may be cultural, biological, psychological, or a combination of them. One way or the other, these dog breeds account for a large majority of dog bites causing the need for medical attention.

Where do people get bit by dogs?

One out of five victims of dog bites are attacked in the following areas:

• Leg
• Arm

One out of ten victims of dog bites are bitten in the following areas:

• Head
• Neck
• Torso

The remaining dog bite victims need medical attention such as broken bones and infections of the blood.

Citation: United States Department of Health and Human Services Agency for Healthcare Research and Quality.

Laws in Missouri regarding dog bite cases:

One of Three: Strict Liability for a Dog Bite

There is strict liability for Missouri dog bite victims under Chapter 273.036 of the Revised Statutes of Missouri. That states as follows:

Owner liable, when–fine, amount.

273.036. 1. The owner or possessor of any dog that bites, without provocation, any person while such person is on public property, or lawfully on private property, including the property of the owner or possessor of the dog, is strictly liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owner’s or possessor’s knowledge of such viciousness. Owners and possessors of dogs shall also be strictly liable for any damage to property or livestock proximately caused by their dogs. If it is determined that the damaged party had fault in the incident, any damages owed by the owner or possessor of the biting dog shall be reduced by the same percentage that the damaged party’s fault contributed to the incident. The provisions of this section shall not apply to dogs killing or maiming sheep or other domestic animals under section 273.020.

2. Any person who is held liable under the provisions of subsection 1 of this section shall pay a fine not exceeding one thousand dollars. The remedies provided by this section are in addition to and cumulative with any other remedy provided by statute or common law.

(L. 2009 H.B. 62)

Analysis of Strict Liability in Dog Bites

Strict liability is more challenging for dog bite cases. This is because of cases such as Brouk v. Bruegeatte, 846 S.W.2d 699 (Mo.App. 1993) and the new case of Wilson v. Simmons, 103 S.W.3d 211, 214 (Mo.App. 2003).

Wilson implies that Missouri law does not require a showing of strict liability actions based on a dog bite or attack. The showing is unnecessary for other actions brought against perpetrators such as for negligence and premises liability.

For example, the case of Duren v. Kunkel, 814 S.W. 2d 935, 938 (Mo. banc 1991) indicates a person who possesses or harbors an animal that he does not know to have abnormal dangerous propensities is only subject to liability for harm done by the animal if he is proven negligent.  Strict liability does not apply.  

Brouk v. Bruegeatte backs up the foreseeability issue.  The plaintiff in Brouk was pursuing the perpetrator under a theory of strict liability alone for the failure to leash his dog. In Brouk, the allegation was that the perpetrator should have known that his dog had a tenancy to attack and act aggressively toward strangers. The court in Brouk held that Missouri does have strict liability. Liabiity is further limited by court interpreting that the dog must have had a history such that the owner could tell in advance that an attack and dog bite was likely.

Two of Three: Negligence Causing a Dog Bite

For hundreds of years our laws have placed duties upon individuals in their own home and over their own animals. This is known by the common phrase “negligence” and is often defined as the conduct of a person falls short of what society obligates them and what our government imposes upon them. These failures are often described in these manners:

• Failing to secure the dog
• Leaving a dangerous to wander freely in your neighborhood
• Leaving the dog unsecured in the yard with the gate open
• Violating local or regional leash laws
• Violating muzzle laws

When these failures of “common sense” duties to one’s neighbors directly causes a dog bite injury, a person may be liable under negligence.

Analysis of Dog Bite Negligence

The important part of negligence is that the person that possesses or harbors the dangerous dog may be subject to liability for money for harm done by the dog even if he does not know in advance its dangerous propensities.

Rather, such as in the case of Duren v. Kunkel, 814 S.W.2d 935, 938 (Mo. banc 1991), the Missouri Supreme Court indicated negligence alone without the foreseeability or history of danger, may allow a victim to recover.

A similar analysis was made in the case of  Horneyer v. City of Springfield, 98 S.W.3d 637, 641 (Mo.App. 2003).  It was indicated “for a duty to exist, it must be foreseeable that the action or omission would cause harm or injury.”

This foreseeability was measured according to a whether a reasonably prudent person (or entity) would have anticipated the danger and provided against it. Such propensities have been described as:

• Ease of controlling the dog
• The failure to supervise the dog
• Failing to instruct others under your control to supervise the dog

Three of Three: Negligence Per Se

Negligence per se is an alternative pleading option in a dog bite case.

A common law action for negligence per se may  be based upon the allegation and proof that a violation of a statutory duty (a law) constituted the negligence. E.g. Brook v. Moyer, 621 S.W.2d 75, 79 (Mo. App. 1981). In that case, the court stated:

A penal ordinance may be pleaded as to the applicable standard of care in a negligence action if:

1. The injured party is in the class of persons for whose protection the ordinance was enacted, and,
2. The ordinance was enacted to protect the persons or property, conserve public health, or promote public safety.

Such ordinances are not considered as creating a new liability, but merely defining the duty already owed at common law to the public or the person injured.

Analysis of Negligence Per Se in a Dog Bite Lawsuit

Interpretation by Missouri courts has backed up this idea of negligence “per se:”

Eckert v. Thole, 857 S.W.2d 543, 545 (Mo.App. 1993);

State ex rel. Wells v. Mayfield, 281 S.W.2d 9, 13 (Mo. banc 1955);

Grimes v. Standard Oil Company, 370 S.W.2d 627, 634 (Mo.App. 1963).

Two Statutes Used to Prove a Dog Bite Caused by Negligence Per Se

Two statutes may assist a dog bite pleading of negligence per se. The first is Chapter 578.012 of the Revised Statutes of Missouri. It provides:

“a person is guilty of animal abuse when a person…(3) having ownership or custody of an animal knowingly fails to provide adequate care or adequate control.”

The victim can allege the failure to abide by this statute “directly contributed to cause” the dog bite. This is one negligence per se statute that is used.

The second negligence per se used in Missouri is Chapter 578.009 of the Revised Statutes of Missouri. This statute provides:

“a person is guilty of animal neglect when he has custody or ownership or both of an animal and fails to provide adequate care or adequate control, which results in potential harm to the animal.”

This statute is more difficult to prove. However, the culpability is greater. 

The victim should allege they were part of a class of people that the statute was designed to protect. The victim must prove their injury was the kind the statute was designed to prevent (dog bites).

Last, the victim needs to prove that the violation of the statue “directly contributed to cause” the dog to bite. 

Information that should be gathered when a dog bite occurs:

Ten categories of information should be memorialized:

1. Who possessed the dog before the bite occured?
2. Who owned the dog at the time of the bite?
3. What was the homeowner’s insurance of the owner of the dog?
4. What was the address where the dog bite occurred?
5. Was the owner or the person who was bit working at the time of the bite?
6. Was the owner of the property operating a business that involved the dog at the time of the bite?
7. What was the appearance of the dog? Are there photographs of the dog?
8. What was the breed of the dog?
9. Did the dog have a history of complaints, being unrestrained, attacks?
10. Was the dog leashed or fenced or in a house?

Documents that the person who was bitten should gather.

Certain documents and evidence should be gathered relating to the person who was bitten. They are as follows:

1. Medical records
2. Medical bills
3. Employment records from at least eight weeks before the bite to the present
4. Photographs of any disfigurement
5. A written description of any alleged disability and physical limitations