Dog bites frequently generate personal injury claims. In most states it is unlawful for an owner to fail to keep a dog confined on the owner’s premises or firmly secured by means of a collar and chain. Violation of the law resulting in a dog bite is strong evidence of negligence. In this situation, it is likely the plaintiff can recover damages from the dog’s owner or handler. In most cases, homeowner’s insurance will cover dog bite claims. The policy may contain an exclusion in coverage if the bite did not occur in the immediate vicinity of the home. If an insurer disclaims coverage, check the policy wording. It is not unusual for an insurer to base a disclaimer on policy language that does not support it. The language must be analyzed carefully to be sure the disclaimer is proper.
One Free Bite
Some states have what is known as a one free bite rule. This means, under ordinary circumstances, the dog owner would not be responsible for the dog’s first bite. You would have to prove that the dog had previously bitten another person or, at the very least, shown vicious propensities through fierce behavior. In other states, the one free bite rule has been abolished. The plaintiff is no longer required to prove that the dog showed ferocious tendencies prior to the attack. Essentially, you would simply have to prove that the dog owner was careless in confining or handling the dog and that this led to the attack.
The breed of dog is important. Cases involving breeds that are known to be particularly vicious are easier. Certain dogs are also known to do more damage when they bite. Pit bulls, for example, are known to be particularly unpredictable. Often it cannot be determined what triggers their violent behavior. Most dogs bite and release, but pit bulls clamp down with their powerful jaws and do not let go. That is why pit bull injuries can be so horrific. Pit bulls learn this potentially deadly behavior even through seemingly innocent games like tug of war. This is why pit bulls must be properly confined and controlled at all times. Pit bull cases tend to be the most serious and the easiest to settle.
Defenses to Dog Bite Claims
The first line of defense is that the owner or handler had reasonable control of the dog. That is all the law requires. Recovery of damages will be a challenge if the owner had control.
Another common defense in dog bite cases is that the plaintiff harassed the dog in some way, provoking the attack. If, for example, a group of teenage boys were taunting and throwing rocks at a dog resulting in an attack, the insurance defense attorney would argue that the attack was not the dog owner’s fault. This is an effective defense. On the other hand, a small child stands a better chance even if it is proven that the dog was incited by the child’s actions. Small children are considered not as legally responsible for their behavior. See the beginning of this chapter for more on children and litigation.
It is possible that the attorney for the dog owner will bring the parents of the child into the litigation as additional defendants. This attorney will claim that the parents were responsible for their child’s action and resulting injuries. The claim may be that the parents failed to properly supervise the child, thereby leading to the attack. If the parents negligently supervised the child, the child might collect from the parents’ homeowners’ insurance company. Or, if both the dog owner and the parents were negligent, the two insurance companies would share payment of the verdict or award.
Witnesses are important for this kind of case. If friends or neighbors know of the dog’s history of biting, make sure to get statements. This will help settle the case. Be sure to obtain complete veterinary records for the dog. These records may prove the dog exhibited vicious behavior in the past. You may need to subpoena these records. Contact the appropriate health department to make certain the victim has not contracted rabies. The health authorities should quarantine and test the dog.
Take photographs of the injury as soon as possible. If the appearance of the scar later worsens—for example, through infection—take more photographs. The wounds will heal. The photographs will prove their extent. Consider the following example.
I represented a woman who suffered horrific injuries in a pit bull attack. Her next door neighbor had failed to repair the fence separating their properties. The woman was attacked while hanging clothes out to dry.
Her family asked me to come to the hospital to interview her. She had bandages on her wounds. With trepidation, I requested that they be removed so that I could photograph her wounds. She had lost large chunks of skin and flesh. I took the photographs, completed the interview, and left the hospital. The hospital staff was not happy about any of this, but this is what the family wanted. Later in the litigation, we were happy I had taken these shots. The insurance company was not anxious for the jury to view these horrifying pictures. The case settled.
If photographs are particularly gruesome, the defense lawyer may file a motion with the court requesting that they be excluded from evidence. The defense would claim that the photos will so provoke the jury’s emotions that the jury would be unfairly prejudiced against the defendant.
For more on pit bull cases, click here.
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