Here’s a puzzler: a dog breaks free of its collar, bites a woman in a public park… and the folks in charge of the dog don’t have to pay the woman’s medical bills.
So says the South Dakota Supreme Court in the case of a woman who was attacked by a dog at Newton Hills State Park. The court record shows the dog had a history of violent behavior and was in doggie foster care with dog-sitters who’d had the dog for less than two weeks. The dog was tied to a tree but broke its collar and, without provocation, attacked the woman, knocked her to the gravel road, and bit her. The woman went to the hospital with a broken finger and got stitches.
Now my assumption is that if my dog breaks loose from his restraints and hurts somebody, it’s bye-bye doggie and bye-bye money from my pocket or my insurer’s pocket to the person my dog hurt. But evidently my assumption is wrong. According to the Supreme Court, the person my dog hurts has to prove that the attack was foreseeable:
Chief Justice Gilbertson said the defendants had law on their side.
“The law in South Dakota does not support any such breed-specific standard of care. We instead recognize that ‘[d]ogs . . . are presumed tame and docile and the burden is on [a] plaintiff[] to show otherwise,’” Gilbertson wrote, citing the 1997 case Tipton v. Town of Tabor. “Here, Ridley has failed to show that Meadow was the kind and character of dog which would make it foreseeable that Meadow would attack a human” [Bob Mercer, “South Dakota Justices Split over Case on Pit Bull’s Attack,” KELO-TV, 2019.08.08].
What? It wasn’t foreseeable that a dog might break his collar and bite a stranger? I assume that possibility about my own relatively friendly dog, not to mention every dog I pass when I’m running or biking past any barking canine. But apparently if you’re bit by my dog, I can shrug and say, “Who woulda thunk it?” and leave you to pay for your own canine puncture wounds.
Had the vicious dog been a minor child and it broke the lady’s finger, the brat’s parents would be held liable.
There isn’t a breed of dog, that I am aware of, that will not attack a human given the right circumstances. A stroll through You Tube will show you any number of vids of “allegedly” trained K-9 dogs attacking without provocation or commands and refusing to stop their attacks on command. They even show them snapping at their handlers.
Any dog, no matter their ‘assumed’ demeanor can attack. My late dog, who was a 30 lb. Boston Terrier loved everyone, and I never seen him attack any person or other dogs or even cats. But I discovered that something about Men’s cologne drove him absolutely nuts, and while he never bit anyone wearing cologne you could tell he wanted to. No one, including a Supreme Court judge can tell what ANY animal will do. Horrible decision.
Good comparison to a child, Mike. If I locked a gun up in my house, but my daughter got hold of the gun and shot someone passing by on the sidewalk, I’m pretty sure I’d be expected to pay the passerby’s medical bills.
South Dakota’s liability laws must be a bigger joke than Drumpf. Hard to believe any person with a lick of common sense could rule this way, let alone a majority of them. The city had no liability, either? EEEEEEk!
I’d say after this ruling, we’re going to have even more puppy mills in SD than we’ve had before – no liability! Huzzah!
Is this a case just espousing the “one free bite” rule?
I wonder, Mr. Sol. I was trying to make sense of the “foreseeable” standard. How many bites does it take to make future bites foreseeable? I tend to operate by the one strike rule—dog bites once, it doesn’t come near my child again.
I do believe that south dakota has a one bite rule. also if you hit a cao in the middle of the road at night, and does damage to you and vechile, does the owner get off as his cows never get out.
This is indeed a decision counter to what appears to make sense.
However, it’s not at all surprising, because this court has upheld the “internal possession” law, the only one of its particular kind of twisted logic in the world.
If you go to Denver and smoke some weed or eat some gummies or chocolates (not bad, by the way) and get blooded and pissed, and there’s detectable THC in your bodily fluids, your are guilty of Internal Possession.
It doesn’t matter that you performed a legal act 200 miles away to The Court or to the HiPos lined up four deep at the border where Highway 79 crosses into SoDak from Nebraska. Or their counterparts south of Cheyenne in WYO.
A judge who can concur with the legislature on that issue will uphold the right of a person to own another person.
In 1967 I hit one of the neighbor’s cows when the Angus were crossing the road at night. We learned about the law that Moses6 refers to. The neighbor paid to get the front clip of the ’63 Ford Galaxie rebuilt anyway, being a neighborly type. (He wasn’t so neighborly to the bank. In the 90s he leined his cattle more than once, then couldn’t repay the loans. Spent some time in the pen in SF for that one.)
CIRD mentions one of many laws in SD that are unconstitutional. You folks put up with way too much from unconstitutional laws. But, with a Red majority, wadda’ ‘ya gonna do. How would this new ruling go over on I-29?
– In a 4-3 ruling, the Colorado Supreme Court ruled that, under the state constitution, a dog trained to alert to marijuana cannot be used before an officer establishes probable cause that a crime had been committed.
Forever, dogs have alerted cops to possession. Then, if demanded by the driver, a warrant is issued by a judge. Not anymore. (In SD the cop just lies and says he smells something illegal.)
https://www.denverpost.com/2019/05/20/marijuana-police-dogs-colorado-supreme-court/
I too had to question the Supreme Court’s ruling when I read in the story that
In SD such a history would normally create a jury question on the issue of foreseeability. If the jury is shown evidence of a dog’s prior violent or dangerous behavior it can find that the owner should have known the dog might repeat that behavior and bite or harm another human – i.e. that the attack was indeed forseeable. But then I read the Court opinion that the article linked.
According to the linked Court opinion,
p.15 This finding appears unquestioned and unchallenged by the plaintiff or the dissent. The Court continues,
p. 19 This statement also appears unquestioned and unchallenged by the plaintiff or the dissent. Finally, Justice Salter states in his concurring opinion,
p. 29 (Opinion of Salter, J). Likewise, apparently neither challenged nor questioned by the plaintiff or the dissent.
Given the actual lack of any evidence of dangerousness or prior dangerous behavior, the majority’s decision doesn’t seem so odd.
Bear, thanks for that closer reading. But does that history weigh as a deciding factor? Does my liability for damage caused by my dog exist only after my dog has caused damage to multiple parties in the past? How many times does my dog get to bite the neighbors before the next bite victim can sue me for damages?
To put it another way, if a dog bites my daughter, and the dog’s owner says, “Gee, my dog’s never bitten anyone before,” I’m going to say, “Before doesn’t matter; my daughter has a dog bite right now. What are you going to do about that?” This ruling appears to say the owner can respond, “Not a darn thing. Not my fault.” How many more kids must the dog bite before the owner has to give a darn?
If you own something with teeth, you have to keep those teeth from ending up in someone else.
Check out this summary of state dog bite laws. Minnesota holds dog owners strictly liable if their dog “attacks or injures any person who is acting peaceably in any place where the person may lawfully be.” The owner isn’t liable if the dog bites bad guys. That makes sense.
If random dog bites me while sitting on a park bench, I have always said that, “I will execute that retarded animal with my bare hands right then and there – hopefully within sight of the dog’s owner – in order to teach them a hard yet valuable lesson about dog ownership.”
If I am around, keep your stupid effing dog on a leash. I believe the law sees (or will see) it my way.
Hey! It’s always great to hear from “Red Flag Adam”, again.
Cory, absent a strict liability rule like you suggest Minnesota has, no one is liable for an injury to another absent proof of negligence or culpability. If a dog owner cannot be shown to have been negligent then generally there is no liability.
A dog cannot bite anyone if it is properly contained. If the owner neglects to exercise care in restraining the dog, then a single bite may be enough to make the owner liable. For example allowing a dog to run free in an undesignated area creates the risk that the dog may harm someone and if it does, then typically an owner can be found liable even if the dog has never shown any dangerous propensity in the past. But in a dog park where everyone knows dogs run free there typically would be no liability for the first dog bite.
In the case you reported on, it appears the parties agreed that the owner had tried to properly restrain the dog and had no reason to know that the leash or restraint was unsafe or could break. Thus, the owner was not negligent in making reasonable efforts to restrain the dog and not liable for the bite.
But if a dog has shown a tendancy to harm a human, even once, the owner is put on notice that if he keeps the dog it is likely to repeat that behavior. If the dog bites again then typically the owner is liable, even if he was not negligent in trying to restrain the dog.
Of course these are only my views and anyone facing a related issue should always consult with legal counsel to determine whether there may be liability is the particular case.
It isn’t biting dogs that are the whole problem. Over-sized, extremely friendly pets can easily knock down an elderly person and shatter brittle bones. Or even young children.
One time, I was sort of definitely going to go out on a date with a gal, until I found out she had a tiny dog with dyed pink hair on its head, and then I changed my mind.
People tend to think their dogs have the right do things like jam its nose up/in strangers crotches and put its wet nose all over strangers bare legs when wearing shorts in the summer time.
Dog ownership often leads to infringing upon other peoples’ inherent right to personal space – in ways that most human beings would receive legal consequences for.
I’m with Adam on his last comment. When someone likes dogs they seem to believe everyone else does too and would welcome a dog jumping all over them.
I’m not fond of dogs, except a few well behaved ones I have met. Very few dogs are actually well behaved and well handled, especially the latter. Yeah, the handler is to blame.
Debbo reminds me that I make these comments as a relatively poor dog trainer myself. I love my dog, but I’ve done a poor job of training him not to nuzzle and roughhouse every visitor who comes to our door and excites his enthusiasm for making a new friend. What the owner may call “aggressive friendliness,” others may rightfully call an invasion of their space. Debbo, when you come to visit, remind me to send my dog out to the backyard before you come in.
BCB, I appreciate your input. I’m curious: how does this issue fit in with personal liability on one’s own property? Does that same standard of negligence apply in determining liability for non-pet-related injuries? For instance, if someone falls down my stairs, does the faller have to show that I was negligent to force me to pay her medical bills—I failed to replace rotten wood in the stair or bannister, or I didn’t install a handrail as required by code, or I didn’t light the stairwell? If my well-lit stairs are in perfectly good condition and I don’t push the lady or anything, do I escape liability for that fall in my house?
Cory, personal liability on one’s own property generally depends first on whatever statutes or regulations exist addressing the subject matter (e.g. workers compensation statutes often create strict liability for workplace injuries with no showing of negligence required). Absent any particular statute or rule (including judicially created rules) creating strict liability, the common law rule is that to recover damages for an injury the plaintiff must prove negligence on the part of the proposed defendant. Normally, absent some statute or rule imposing strict liability, the mere fact that someone is injured on your property does not by itself result in liability without proof of negligence.
So in my view, absent a controlling statute or rule, if someone falls down your stairs they typically would have to show some negligence on your part before they could recover any damages from either you or your insurance company.