During my summer breaks at college and during the year before law school, I worked as a letter carrier for the USPS. As a part-time and new employee, my routes changed almost daily and they rarely required me to drive. It was a great job except for the crazy dogs I encountered. One might speculate that the dogs that chased, harassed, annoyed and bullied me inspired my sub-specialty of handling dog attack cases over the last three decades.
Although some call these cases “dog bite” cases, I call them “dog attack” cases. Without being too dramatic, I describe these cases for what they are: vicious, life-changing, brutal, violent, frightening and traumatic.
Most of the cases I have handled involve young, defenseless children. The American Humane Society reports 50 percent of dog attacks involve children under 12 years old. Many of the cases are avoidable by common sense and responsible behavior on the part of the dog owner/caretaker. Sadly, many of the cases are accidents waiting to happen, in the sense that the dog has displayed aggression previously or otherwise is of a particular “breed” that has known, aggressive tendencies.
Homeowner’s insurance and renter’s insurance typically provide both medical and general liability coverage for personal injury as well as property damage coverage in cases of a dog attack.
If there is no applicable liability coverage, sometimes persistence and creative lawyering can pay off. For example, in one case, the homeowner/dog owner had no liability insurance. However, the homeowner adopted the dog (the one that bit my young client) from a local humane society. The humane society claimed it had misidentified the breed of the dog. The homeowner made it clear to the adoption agency that he did not wish to adopt a particular breed of dog as the dog would be around young children on a regular basis. Sure enough, the dog bit my client. I sued both the previous owner of the dog as well as the adoption agency.
A recovery was obtained from both defendants with the adoption agency paying the larger share of the settlement.
Negligence per se
My first inquiry in an animal attack case is to determine in what city and country the accident occurred to see if there is an applicable animal control law. Fortunately, almost all counties and many cities in Oregon have regulations governing the behavior of dogs and their owners and keepers. For example, there are usually applicable animal-at-large city or county provisions. Typical regulations state:
- No dog owner shall permit a dog to be at-large.
- A dog owner, whose dog runs at-large, commits a Class D violation.
- A dog owner is deemed to be negligent per se for the actions of a dog at large when the dog causes injury to a person or property.
The majority of dog attack cases I handle involve animal control code violations amounting to negligence per se. In these cases, the focus then becomes one of damages.
In addition, Oregon has enacted ORS 31.360, which provides for recovery of economic damages as follows:
- For the purpose of establishing a claim for economic damages, as defined in ORS 31.710, in an action arising from an injury caused by a dog:
- (a) The plaintiff need not prove that the owner of the dog could foresee that the dog would cause the injury; and
- (b) The owner of the dog may not assert as a defense that the owner could not foresee that the dog would cause the injury.
- This section does not prevent the owner of a dog that caused an injury from asserting that the dog was provoked or any other defense that may be available to the owner.
- This section does not affect the requirements for an award of punitive damages provided in ORS 31.730 (1)
Some dogs love to run at the beach and in the direction of people aiming for a quiet walk. One summer day, Susan was walking along a beautiful stretch of an Oregon beach with her miniature Yorkie when she encountered a playful and energetic Retriever that was unattended and unleashed. The dog was about a hundred yards away when it ran toward Susan in a speedy and aggressive manner. The dog came upon Susan and was barking and jumping. The woman attempted to discreetly back away from the dog’s advancing and somewhat threatening behavior. Suddenly, the Retriever lunged at the Yorkie and its owner. As Susan stepped back, she fell on an uneven area of sand. She twisted her ankle and sustained knee and ankle injuries that required surgery.
Since there was no applicable country or city code, Susan was left to plead and prove a common law negligence claim.
Oregon courts have long held that dog owners are responsible for their unreasonable failure to maintain control over their canines. In Medlyn v. Armstrong, 49 Or App 829, 621 P.2d 81 (1980), the court stated that a dog owner may be found negligent for a failure to control or confine an animal. The court found that a dog owner is responsible for taking reasonable precautions to prevent a foreseeable risk of injury by the animal. The analysis in Medlyn focuses on whether the defendant “knew or had reason to know that the dog, if not controlled or confined, might cause the injury incurred by plaintiff.”
The court cited the 2nd Restatement of Torts and noted that a dog owner is required to “have knowledge of certain characteristics of his/her animal.” The court also noted:
(The owner) . . . is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.
In a more recent case, Van Zanten v. Van Zanten, 190 Or. App. 73, 78 P.3d 100 (2003), the court stated:
A person who possesses a domestic animal that the person knows or has reason to know is abnormally dangerous is strictly liable for the harm caused by the animal as a result of its abnormally dangerous characteristics. For all other domestic animals, a person who possesses an animal is liable for harm caused by the animal if the person is negligent in failing to prevent the harm.
In the beach case above, do you think it is reasonable to argue that the owners of the dog had knowledge and should have known of their Retriever’s tendency to roam, chase and run? Can a reasonable argument be made that a Retriever’s traits are such that it needs daily exercise and has a tendency to run and that this particular dog should not have been allowed to be at large? Are Retrievers territorial? Protective?
I certainly think so. Through the use of The Encyclopedia of Dog Breeds, D. Caroline Coile, Ph.D. (Barrons – 1998) and expert opinion, it can be shown that each of these arguments should be accepted by the insurer.
My dog doesn’t bite
Young Billie was at the home of her parents’ longtime family friends for a summer BBQ. It was August, and the temperature was hot. The friends had an Akita-Chow Chow mix named “Chewbaca.”
The dog was described in a deposition of the dog’s owner as “loveable.” To the family, Chewbaca was the perfect dog. Unfortunately, this wonderful canine bit Billie, my 7-year-old client, on her face. The liability insurer, under the homeowner’s policy, was sympathetic but the
insurer’s seasoned defense counsel informed me I had a losing case because the dog had no prior history of biting or aggression.
Fortunately, The Encyclopedia of Dog Breeds strongly suggested otherwise. The text said Akitas are known to be “independent, bold and tenacious.” They are able to “live outdoors in temperate or cool climates.” Historically, Akitas “distinguished themselves in the hunting of bear, deer and wild boar.” During the 1800s, the breed “underwent a period when it was used as a fighting dog, and some were even crossed with other breeds in an attempt to enhance fighting prowess.” (Id. at 100-101). The Chow Chow is an “alert breed that needs regular . . .strenuous . . . exercise.” (Id. at 251)A Chow Chow is “best allowed to stay inside during warm weather . . . as it does not do well in hot humid weather.”
My argument to defense counsel went along these lines: First, it appeared the owners had knowledge and/or, at the very least, should have known of Chewbaca’s tendency toward agitation and aggressiveness given its Akita-Chow Chow Mix.
Second, the traits of Chewbaca are protectiveness and seriousness, based upon my trusty authoritative treatise on dog breeds and based upon the opinion of an informed animal behavioral specialist.
Third, Chewbaca, due to his breeding, required regular outdoor activity.
Fourth, Chewbaca, predictably, would not be expected to do well in “hot humid weather.” Unfortunately, for the 7-year-old and her parents, on the day of this attack, the temperature reached a high of over 90 degrees.
Lastly, due to Chewbaca’s strong muscular and powerful body, and given his makeup and breeding, he should not have been allowed to be in the company of a 7-year-old on the late afternoon of that hot August day. Throw in the fact that the dog had not eaten since the early morning and add in the scent of barbecued food filling the hot and humid air and you have a tragedy waiting to happen.
In the above case, the liability insurer and counsel apparently agreed with my assessment as the case was settled rather quickly after depositions were taken.
Prevalent and far too costly
Dog attacks are a serious public health matter. An estimated 4.7 million dog bites occur in the U.S. each year, according to the Centers for Disease Control and the Humane Society of the United States. The Agency for Healthcare Research and Quality reports, in a study published in November 2010, “The average cost of a dog bite related hospital stay was $18,200 in 2008, approximately 50 percent higher than the average injury-related hospital stay.” (Emergency Department Visits and Inpatient Stays Involving Dog Bites, 2008 authored by Laurel Homquist, M.A. and Anne Elixhauser, Ph.D.)
I have found that many insurers are reluctant to face a jury where certain breeds are concerned. There has been so much publicity over the past ten years or so about dog attacks involving certain breeds that jury sympathy usually lies with the victim of the attack. It has been estimated that the insurance industry pays over one billion dollars in dog-bite claims every year. (Humane Society of the United States. National Pet Related Statistics. Shelter-Pages 37-38. 2005.)
Scaring, physical and emotional
I have had many cases where the economic damages are less than $10,000 but the case warrants a settlement for policy limits of $50,000 to $100,000. That’s because the injured party often sustains permanent scarring.
The person who is attacked will live with the physical scar forever. The emotional impact will likely last just as long and affects people in different ways.
Sadly, I am reminded of one young client who sustained facial scars from a dog attack. During the Halloween season, her classmates told the child she already had her ugly face on and didn’t need to wear a costume.
In another case, I represented a young professional (who looked like George Clooney’s younger brother) who had a very small scar resulting from a bite to the lip by a miniature dog. The young professional was upset by the bite. At first, the adjuster could not understand why Clooney Junior was so beset by a bite that resulted in a scar that was hardly noticeable.
The reason for my client’s discomfort finally came to light when he explained that people thought he suffered from herpes, not a dog bite.
Be bold and be an advocate
I proudly advertise that I handle “work injuries, personal injuries and dog attack/bite claims.” As I often tell insurers and defense attorneys, the consequences of a dog attack can be life-long and life-changing. Especially in the case of facial scarring. Dog bite survivors will live with the trauma of their attack and be reminded of it every day, every time they look in a mirror or see a photo of themselves.
Prosecuting dog bite cases is a worthy niche in the practice of personal injury law. It is my hope that others will take up the cause and be ferocious advocates for the unfortunate souls who are attacked.
Rob Guarrasi is a sole practitioner. He contributes to the OTLA Guardians of Civil Justice at the Guardians Club level. Rob is licensed in Oregon, California and Hawaii. He handles personal injury and workers’ compensation claims. He has a keen interest in cases involving dog bites and animal attacks. Notwithstanding that, he and his family are doting parents to Kalani, a Golden Retriever. Rob can be reached at PO Box 2333, Lake Oswego OR 97035 or firstname.lastname@example.org or 503-699-5588.