We all know and understand too well that we are held civilly liable if our dog bites a person. But if we keep our dogs confined in a kennel or fenced yard, under what circumstances can we be held liable?
While laws and definitions concerning dog bites vary from state to state, the intent of these law remains constant: to civilly empower the victim of a dog bite. Washington State law states:
The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.
Civil lawsuits have been won around the country on the basis that a dog's owner deviated from what the courts felt would be the standard of care for individuals who own dogs that are trained to bite humans when defending against an attack on them or their handler.
In order for liability to occur, there must be what is known as culpability. There are four types of culpability as defined by law. They are intent, knowledge, recklessness and negligence. We're concerned here with negligence, since no responsible dog owner would knowingly act in a manner which would constitute the other types of liability in a civil liability situation.
A person is negligent or acts with negligence when he fails to be aware of a substantial risk that a wrongful act may occur, and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man would exercise in the same situation.
Is your property posted with "NO TRESPASSING" or "BEWARE OF DOG" signs? How about a sign posted showing a picture of a dog with teeth barred to warn illiterate individuals, or children who can't yet read, that there is a dog trained to bite human beings on your property? Is the gate to the kennel or fence where your dog is confined padlocked at all times to ensure that the dog can not escape?
You may be thinking, "My dog isn't vicious, I keep him safely confined, he loves people (especially children), so nothing could ever happen to me......"
What if a malicious neighborhood juvenile enters your property and allows your dog to escape? Perhaps you're running late some morning and after caring for the dog, you don't quite get the gate latch closed all the way on your way to work and your dog escapes. The dog wanders the neighborhood and finds the neighborhood children playing street hockey. The stick and hockey puck look like great fun so he decides to join them.
Now high in prey drive from watching all the activity, he runs toward them barking like crazy. As he approaches, a frightened child begins to run away, waving the hockey stick in the air. The dog goes for the tantalizing stick but misses the intended target and instead accidently bites the child on the arm. The parent that ran outside after hearing the commotion just witnessed your dog viciously attack an innocent child "without provocation." And your whole life has just been turned upside down in about two minutes flat.
The kid that let your dog escape may have some culpability in this scenario, but how deep is the pocket of that 15-year-old or his parents? The jury will feel sympathy for the victim because, after all, you are the owner and therefore you are ultimately responsible. There will be little consolation even if the delinquent is sentenced to juvenile detention for the trespass and malicious mischief.
Washington statute RCW 16.08.050 defines lawful entrance on private property as follows:
A person is lawfully upon the private property of such owner when such person is upon the property of the owner with the express or implied consent of the owner: Provided, That said consent shall not be presumed when the property of the owner is fenced or reasonably posted.
This statute would lead us to believe that as long as your property is fenced and posted, you can not be held liable if your dog bites someone. After all, who would possibly be stupid enough to enter fenced, clearly posted property populated by barking dogs?
What about the 7-year-old child who enters your posted and fenced property while you are at work and is bitten while placing her hand through the chain link kennel? There is no protection for you from liability by the trespassing statute because by law, children under the age of eight years are incapable of committing a crime. Furthermore, children between the ages of eight and twelve years are presumed to be incapable of committing a crime unless it is proven they had the sufficient capacity to understand that the act was wrong. We can only hope that a jury will find that the mother must share at least some of the liability for allowing her child to go unsupervised, which resulted in the child wandering onto your property. Remember, however, that a sympathetic jury will want to compensate the injured child for this traumatic event.
Take the precautions mentioned above. Post your property in highly visible places with NO TRESPASSING and BEWARE OF DOG signs that clearly display the presence of a dog. Secure your gates with padlocks, and tell your neighbors what they should do if they discover that your dog has escaped. Give them your work phone number or the number of someone to contact who can quickly return your dog to its place of confinement. And make sure that your homeowners insurance policy provides adequate coverage in the event it is ever necessary.
As responsible dog owners, we have the obligation to protect the sport, our neighbors, our dogs, and of course, ourselves.