Homeowner Liability If a Dog Bites a Trespasser

You might assume that dog owner liability for dog-bite injuries doesn't extend to people who are trespassing on the dog owner's property at the time of the bite incident. That's true in most instances under general fault principles of personal injury law, but there are situations in which a dog owner won't automatically be off the legal hook for injuries to trespassers. Each state has its own rules, but in this article we'll take a general look at:

• who might qualify as a "trespasser" for purposes of dog-bite liability
• a homeowner's legal obligations when it comes to the safety of trespassers in general
• why "the claimant was trespassing", if proven, is often an effective defense to a dog-bite claim, and
• situations in which a dog owner might still be liable if their animal bites a trespasser.

What Is a Trespasser?

The first thing to figure out is whether or not the claimant (the injured person) was truly a trespasser on the dog owner's property, because that will determine the legal duty of care that the dog owner probably owes to the claimant under the law, and the applicability of the state's dog-bite statute.

A trespasser is someone who unlawfully enters the property or land of another. However, be aware that simply entering property without the landowner's permission does not automatically make someone a trespasser. In some situations, the alleged trespasser may have implied permission to enter the property. For example, a door-to-door salesman may have implied permission to enter your property if you do not have a locked gate or a "no soliciting" sign.

Is There a Legal Duty Owed to Trespassers?

When it comes to people on the property, if the homeowner/dog owner does not demonstrate the amount of care that's appropriate to the situation, the homeowner/dog owner can be deemed negligent, and can be liable for any damages suffered by the injured person. (A homeowner's obligations in this context fall under the legal umbrella known as "premises liability.")

What is the standard of care owed to a trespasser? Generally, a homeowner owes a very limited duty of care to trespassers (compared with the duty owed to invited guests and other visitors). There are very few situations in which the trespasser will be entitled to any level of legal protection, but let's look at two of the most common.

"Discovered" Trespassers. When people trespass on the dog owner's land with a fair amount of regularity (a popular shortcut to the ocean runs close to or on the property, for example), then the dog owner's legal obligations to potential trespassers will probably be heightened. In this situation, the dog owner might be required to post signs warning of the presence of a dog, and if the dog has so-called "dangerous propensities," the animal may need to be kept in an enclosure or otherwise adequately restrained from running free.

While the legal definition varies in each state that has one of these laws on the books, a "dangerous" or "vicious" dog (or one with "dangerous propensities") is usually one that has exhibited characteristics indicating the animal is a threat to cause injury to a human being. A dog's past run-ins with people and even its breed can be considered in determining whether or not a dog is "vicious" or has dangerous propensities.

Note that if the dog owner takes sufficient precautionary measures, he or she might not be liable if a trespasser is bitten by a so-called "dangerous" dog. For example, if the dog owner chains the dog inside an enclosure, and posts warning signs about the presence of a dangerous dog, and the trespasser puts him or herself in harm's way, the trespasser probably cannot recover any damages from the homeowner.

"Willful or Wanton" Conduct. In most states, property owners must refrain from engaging in "willful and wanton" conduct that causes injuries to trespassers. This means a dog owner can't go out of his or her way to intentionally cause injury to a trespasser, or create circumstances in which injury becomes likely. An example here is a dog owner releasing a dangerous dog to run loose on the property after suspecting that a trespasser has entered the land.

Most "Strict Liability" Dog-Bite Statutes Don't Apply to Trespasser Injuries

In states that have a "strict liability" dog-bite statute, the language of the law often carves out an exception for trespassers (meaning the dog owner won't be liable for injuries to trespassers).

In the context of a dog-bite case, "strict liability" means that an injured person is not required to show that the dog owner acted negligently (i.e. failed to use reasonable care in controlling the dog or preventing the bite from occurring), or that the owner did anything wrong at all. If the elements of the strict liability statute are met, the dog owner is liable for the claimant's medical bills, lost income, and other damages resulting from the incident, regardless of whether the dog owner did anything wrong. But in most states, a claimant can't use the "strict liability" statute if he or she:

• was trespassing at the time of the bite, or
• provoked, teased, or abused the dog.

Let's look at two examples of state dog-bite laws as they apply to trespassers:

Colorado: Strict liability dog-bite statute does not apply to trespassers, dog-provokers, or people on property marked with "no trespassing" or "beware of dog" signs.

New Jersey: Trespassing is a defense to strict liability or negligence only if the trespasser had criminal intent. De Robertis v. Randazzo, 94 N.J. 144 (1983).

Learn more about strict liability versus negligence in dog-bite cases. And whether as an animal owner or as someone who has suffered a bite or other injury, if you find yourself on either side of a case like this, it may be time to discuss your situation with a personal injury lawyer.