Many of us in my neighborhood have probably noticed a couple of unleashed dogs that seem to constantly roam the subdivision unsupervised. As a homeowner, I find it a disturbing nuisance. As an attorney, it makes me wonder if the owners really understand the extent of liability they could face if one of the dogs bites someone. If he bites someone in my household, I most certainly will help the homeowner become educated. But, I decided to write this article in hopes that it never comes to that.
Greater Risk for Dog Owners
In Louisiana, liability for harm caused by dangerous animals is generally determined under a negligence standard. In a nutshell, this typically requires some showing that the owner of the dangerous animal knew or should have known the animal was dangerous and failed to take reasonable action to prevent the harm the animal actually caused. Key to the definition is the knowledge requirement.
However, where the animal causing the harm is a dog, the liability of the owner is determined under a strict liability standard. In short, this means there is NO knowledge requirement. A person who sues a dog owner for harm caused by the dog does not generally need to prove the dog owner had any knowledge of the dog’s dangerous character.
This is an important concept because the most likely first excuse from a dog owner whose dog just bit someone is “he has never bitten anyone before.” Well under a strict liability standard, that may not mean a thing and may not protect you from liability.
So when you add it all up, the owner of a dog may have a tougher time defending himself than the owner of a pet alligator. At least a person bitten by the pet alligator would have to prove the owner knew of the pet’s dangerous character (which, admittedly, is probably not too hard).
Liability of the Victim
Now, in fairness, the victim is not totally absolved of responsibility to act reasonably around dogs. Two concepts come to mind here: provocation and comparative fault.
If a person bitten by a dog actually provoked the attack, the strict liability standard may not apply. I don’t think this lets the owner of the hook. It just means the dog bite victim may have to prove the dog owner knew or should have known of the dog’s dangerous character (negligence standard).
What constitutes provocation? Well, that’s an issue of fact to be determined in court. But, I would expect actions like stomping at a dog, throwing things at it, or attempting to scare, harm, or aggravate it are examples.
The other issue is comparative fault. In Louisiana, the fault of ALL persons – including the victim – are taken into consideration when determining liability for injuries or harm. That means that liability for damages assessed to the dog owner could be reduced by a percentage equal to the victim’s fault in causing the bite. Here is a story to illustrate the point.
In Howard v. Allstate, an eleven year old child was bitten by her neighbor’s dog. We will call her Dolly. The dog was kept in a double fenced area. A “Beware of Dog” sign was posted on the gate of the outer fence, but no sign was posted at the entry of the second fence. The eleven year old victim was visiting the dog owner’s home to play with their child. We will call her Jane.
The children were initially playing across the street. But, after becoming bored – as children do – Jane invited Dolly to come into the second fenced area to play on the swing set. Remember the German shepherd was kept there. At trial, Jane claimed she asked Dolly to wait until she could get her parents to lock up the dog. Dolly claimed there was no such warning.
Dolly proceeded into the second fenced area and was immediately attacked by the dog. No need to discuss the details of her injuries, but the court assessed damages at $28,000.
Applying a comparative fault analysis, the court found Dolly was 10% at fault. Consequently, Dolly’s recovery against the dog owner was reduced to $25,300.
-Howard v. Allstate, 580 So. 2d 962 (La. 2nd Cir. 1991).
So, I wrote all of this to say only a couple of things. First, if you live in my subdivision and your dogs are running lose, please take control of them. The rest of us don’t think it’s cute.
Second, if you are a dog owner, please be apprised of your liability. The law is actually very strict. Even more strict than if you traded Fido in for a pet alligator!