Legal Elements of a Dog Bite Injury Claim

An overview of the legal issues involved in bringing a personal injury claim or lawsuit for injury caused by a dog.

When someone is bitten or otherwise injured by a dog, what he or she must prove in order to bring a successful lawsuit for injuries depends on a variety of factors, and can vary widely from state to state. This article discusses the most common factors, and what to expect when trying to win or defend a dog bite case.

Owner Knew or Should Have Known Dog’s Tendencies

In a state without a dog bite statute or another superseding law, the general rule is that an owner is liable for a dog bite only if he or she knew or should have known that the dog had aggressive tendencies, i.e. that it was the kind of dog that might bite someone.

Proof that the dog has acted aggressively and/or bit someone before is typically sufficient. However, prior attacks are not necessary. For example, if the owner knows that the dog has become “snappy” and irritable after an operation, it is the owner’s duty to make sure other people are safe around the dog. And if that means the owner needs to keep people away from the dog shortly after the animal has visited the vet, then that becomes the owner's responsibility.

A plaintiff can also use circumstantial evidence to prove the owner knew that the dog might bite -- such as the historical aggressiveness of the breed, the fact that the dog was kept on a chain, or the fact that the dog was used as a guard animal or "watch dog."

However, a dog bite statute may do away with the requirement that defendant knew or should have known about the dog’s aggressiveness, as discussed below.

Dog Bite Statutes

A number of states have “dog bite” statutes. The exact nature of the statute can vary from state to state. However, many of these statutes remove factors that in the past were required in order to hold a dog owner civilly liable for a dog bit -- for example, the requirement of the owner’s knowledge of the dog's propensities.

If the plaintiff can show that the defendant violated the requirements or restrictions laid out in the statute -- and again, these vary from state to state, but we've got an example excerpted below -- he or she will win the dog bite lawsuit.

Some states have statutes that apply specifically to dogs, while others apply to all domestic animals. Some apply specifically to bites, others apply to any kind of harm caused by the animal. Some statutes only apply to specific victim/plaintiffs, such as people in certain locations.

For example, several states have dog bite statutes very similar to California’s, which reads:

The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.

In other words, if the plaintiff had the legal right to be where she was when the bite happened, the owner/defendant is liable to her regardless of any other factors (with the exception of police and military dogs). Not all state statutes make it as easy for a plaintiff to win a dog bite case, but knowing which specific rules apply in your state is crucial to completely evaluating the case. To find the law in your state, see "One-Bite" vs. Strict Liability Rules for Dog Bite Injury Cases.

Actual Harm to Victim

An essential element in all dog bite cases, regardless of statute, is that the bite actually caused some kind of harm. If the harm was minimal, the recovery will be minimal. Keep in mind, however, that damages for pain and suffering include emotional damages. Even if a dog bite caused only slight physical harm, a reasonable plaintiff might still be traumatized by the attack.

Defenses in Dog Bite Cases

If the plaintiff was trespassing at the time of the bite, the owner will not be liable. This is true in states that do and do not have dog bite statutes.

If a plaintiff in some way provoked the dog that eventually bit him or her, that might also provide a defense. Some dog bite statutes, however, do not allow a provocation defense. In states that do allow the defense, either by statute or because there is no statute, it is typically the plaintiff’s responsibility to prove that he or she did not provoke the dog, either intentionally or unintentionally (technically, this isn’t a defense because the plaintiff has to prove it, but the effect is the same).

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