Dog Bites and Strict Liability – What You Need to Know

In this podcast, John Maher talks with Rob Mazow and Kevin McCullough of Mazow and McCullough about strict liability in dog bite cases. They explain how laws vary by state, the concept of strict liability in Massachusetts and New Hampshire, and common defenses for dog owners. The discussion also covers negligence, steps victims should take after a dog bite, and advice for dog owners to prevent incidents. Tune in for valuable legal insights and practical tips on managing dog bite situations.

John Maher: Hi, I’m John and I’m here today with Rob Mazow and Kevin McCullough of the law office of Mazow and McCullough. Today, we’re talking about strict liability in dog bite cases, what you need to know. Welcome, Rob and Kevin.

Robert Mazow: Thanks, John.

Kevin McCullough: Thank you, John.

What is Strict Liability with Dog Bites?

John: So, Kevin, can you explain what strict liability is? And I know in some states in the United States there’s something called a one bite rule that might potentially protect dog owners in a first bite scenario, but talk a little bit about strict liability and what that means.

Kevin: Yeah, John, this is one of those examples where the internet can be a dangerous thing. The law can vary from state to state as far as the liability for a dog owner. And there are some states where they’ll get more into what type of dog was it? Are they a dangerous dog? Do they have what’s called dangerous propensities? Do they have aggressive behavior? Is the dog owner put on notice in some way that this dog can be dangerous or may attack or may bite?

And oftentimes, that bleeds into some of the other states and how they may handle situations regarding dog owner negligence or dog owner responsibility. Here in Massachusetts and also in New Hampshire, there is a thing called strict liability when it comes to the liability and responsibility for a dog owner following an attack or a bite or an injury.

And with strict liability, it really puts the immediate onus on the dog owner. In Massachusetts and New Hampshire, the dog owner is responsible, proactively, affirmatively responsible for all actions of their dog, including biting, attacking, knocking someone down, causing injury, there’s no one bite rule. Here in Massachusetts or New Hampshire.

The dog owner is at fault at all times and responsible for their dog. The exceptions to that, because there are exceptions to everything in the world, John, the exceptions to that, and they make sense when you think about it, are whether or not the person who was injured was trespassing. Were they on your property or someone’s property where they shouldn’t have been, which ultimately may trigger the dog to act a certain way to protect their homeowner?

So, the defenses to this strict liability for dog owners to assert, if applicable, are trespassing, teasing, you can’t tease a dog and expect the dog not to react, or what’s called tormenting, which can be a form of teasing of the dog. So again, here in Massachusetts and New Hampshire, as a dog owner you have a pretty serious responsibility in that you are primarily responsible for all of the actions of your dog.

Whether you know about them or whether you should have known about them doesn’t matter here. What we do see often with some of the inquiries that we receive from injured parties, and sometimes dog owners looking for advice who have done some internet research, is this one bite rule.

And here in Massachusetts and New Hampshire, the towns and the cities have different standards and different ordinances, if you will, as far as whether or not you can have a dog or keep a dog on your property. That’s completely different to a dog owner’s responsibility under a negligence theory if their dog injures someone.

They’re legally responsible. It’s a strict liability claim if a dog owner’s dog causes injury. But sometimes it gets bogged down in that town or city standard, which is whether or not they’re going to let the person who owns the dog keep the dog. That’s where we see this one bite rule or this dangerous propensity analysis here in Massachusetts.

Again, it’s important to separate this. That one bite analysis, dangerousness of the dog, has nothing to do with the bite or the responsibility of the dog owner because they are strictly liable. That analysis comes into play as to whether or not that dog owner can keep that dog moving forward because that city or town may jump in and say, “You’ve had your chance. This is the one bite rule. Your dog bit your neighbor and you’re going to have to deal with the legal consequences of that and that injury.”

We’re coming in to say, “You cannot keep this dog at this point, because now we’ve deemed it a danger to the neighborhood.” So that’s some of the confusion that victims and dog owners, when they do that internet research and they see the different laws throughout the country, how they vary from state to state. And again, they vary dramatically sometimes from city to city or town to town just with neighboring towns.

So, pushing aside this one bite rule, whether you can keep your dog after the fact, those are things for dog owners to deal with at their individual respective cities and towns. Go to town hall, talk to the authorities. When we deal with clients who have suffered injuries from dog bites, dog attacks, or being knocked down by a large dog, it’s a strict liability analysis. It’s a strict liability standard. That dog owner is responsible unless they can show trespassing, teasing, or torment.

What Are The Defense Options Against A Lawsuit

John: So maybe, Rob, talk a little bit more about that and if there are some exceptions where a dog owner might not be held liable for a dog bite, or defenses that a dog owner might have against a lawsuit.

Robert: I mean, really the only defenses that you have is let’s say I’m walking down the street and I open somebody’s gate into their yard unwelcomed, uninvited, and a dog bites me. If that person or if I came to an attorney, it wasn’t their dog, well, the attorney would say, “You were trespassing. The dog did what it was supposed to do.” That would be one case that a dog owner would not be responsible. There’s going to be an exception to that too, which I’ll get to in a second, but that’s one.

Another one would be if a person is poking a stick at a dog. The dog’s just minding its own business and you walk up and you poke the dog to the stick. That would be tormenting the dog or abusing the dog and the dog bites. If the dog’s going to react, you’re not going to be able to successfully make a claim in Massachusetts or New Hampshire for that either.

The exceptions to these are if you are a minor child, or let’s say somebody who’s just not competent mentally to make rational choices. If a three-year-old steps on a dog’s tail, which an adult may be found to have tormented or tease the dog by doing that. If a child does that, it’s the defense of teasing and tormenting is probably not going to fly. If a child somehow trespasses into somebody’s home that doesn’t belong, a dog bites, a three-year-old, a four-year-old, a five-year-old, a six-year-old doesn’t have the capacity to be able to know that they’re trespassing. So in those instances, those are the exceptions to the exceptions.

There’s another potential party that could be liable, though, that’s not necessarily the dog owner, and that’s what’s called the keeper of the dog. Other people have dog walkers that come into their homes during the day, they walk the dog. It’s a nice service to be able to have to people still allow them to work. Or you bring the dog to a groomer. Or I give you my dog, John, to hang around with for the day. You are accepting responsibility at that time for that dog’s behavior. Now, that doesn’t take me off the hook necessarily, but it brings you into the potential liability.

If you’re walking my dog, you are the keeper of that dog and you have to maintain control of that dog. And if the dog bites or hurts or harms another person, you could potentially be responsible as well. So there’s strict liability and then there’s nuances to that as well. But in Massachusetts, again, as Kevin explained in great detail, that you own a dog, you’re responsible for the dog’s behavior. The dog doesn’t know right from wrong, so you can’t prove whether the dog intended to do something or that the dog was negligently behaving. That’s why we have this rule.

How Does the Legal Concept of Negligence Factor into Dog Bite Cases?

John: So, talk a little bit more about that legal concept of negligence and how that factors into dog bite cases.

Robert: So, the difference between strict liability and negligence are in negligence you have to prove that there was a duty to act appropriately, that you breached that duty to act appropriately, and that you caused somebody harm. In a strict liability, you do not need to prove duty and breach because you just get right to causation and harm. You have a dog, the dog bites, you’re responsible, subject to those exceptions that we’ve talked about. That’s what strict liability is.

And the reason why we have this is it would be impossible for victims to prove that a dog or a dog owner necessarily acted negligently because a dog is an animal. The dog is going to have compulsive and impulsive behavior. You can’t prove that the dog didn’t like you, so it bit you, or the dog meant to bite a stick, but bite your leg instead. It would be impossible for victims to successfully get compensation in those instances. So that’s what we have, a strict liability.

Does True Negligence Affect A Case?

John: Does it change anything in the case where somebody is obviously being negligent? For example, in Massachusetts we have a leash law. You’re supposed to keep your dog on a leash. But I go hiking in the woods all the time and I see people that as soon as they get their dog into the woods, they just let them off the leash and let them run around free figuring, “Oh, we’re in the woods. What does it matter?”, or something like that, and then dog comes running up to me. In that case where maybe if a dog bite did occur and the owner was clearly being negligent by letting the dog off the leash, does that change things at all or is it because of the strict liability it’s just all the same?

Kevin: It doesn’t necessarily change the victim’s ability to pursue and recover damages, and it doesn’t necessarily increase those damages. But the hypothetical that you just gave, John, what it does do is it creates a separate additional legal avenue for that victim to pursue the dog owner. And what I mean by that is if a dog owner goes to the park or goes to the woods and just lets the dog off the leash to go run and that dog bites someone, that dog owner is legally responsible for those injuries under the theory of strict liability.

But in that hypothetical that we’re talking about, the dog owner would also be liable for those injuries under the legal theory of negligence because they had an obligation to keep the dog on the leash, that duty. They breached that duty by removing the dog from the leash and the dog then bit an individual. And let’s just say that there was an argument to be made by the dog owner that he did have a defense to the strict liability argument. Whether there was a potential scaring of the dog or teasing the dog, that dog victim would still have the ability to pursue that dog owner with this hypothetical that we’re talking about under that negligence theory.

So think of it as two separate, independent legal avenues of recovery that, if a lawsuit were to be filed, the lawyer should include both of those legal theories within that document filed at the court and to do the discovery and take the depositions as needed to flush out both of those legal theories because at the end of the day, that’s probably going to help that lawyer representing the injured party, that victim, settle that case to show how much overwhelming evidence there is that that dog owner is involved. Again, it doesn’t do anything to increase the damages or to enhance the damages, but it may really help to solidify the legal theory and to show the responsibility of that dog owner to the insurance company.

What Steps Should A Victim Take After A Dog Bite?

John: Okay. And then so what steps should a victim take after a dog bite accident to maybe document the attack and build a strong case?

Robert: Well, first and foremost, it’s seek medical attention. I don’t care if it’s a scratch or a bite or nip, or certainly if it’s a significant injury. You get to the doctor. You don’t know what’s going on with this dog’s mouth. You don’t know whether there’s any issues there, infections, things like that. So first and foremost is you get to the hospital, you get to the doctor.

You make sure that you find out who that dog owner is. The challenging part is when that dog is just off a leash somewhere running around, maybe doesn’t have a collar it on and maybe doesn’t have tags. That’s a problem. I mean, if you can’t find out who that dog is and who that dog belongs to, you are out of luck. Now, we have had people who have been in those circumstances where they’ve been walking in a park, or like you say, hiking. And a dog is off leash and the person is bit, and for whatever reason they have to go get medical attention or they have to leave before they can find out who that dog owner is.

They’ve gone back to those parks. They’ve gone back to those scenes and they have waited and they have found, more often than not, that person comes back to the area, to the scene, and they’re able to get information about who that dog is. Sometimes the towns are aware. I mean, if you properly register a dog, you go to the town, you register the dog, the papers prove that the dog got vaccinated, et cetera. Sometimes in a smaller town you can go to the town hall and explain what happened. And maybe with some help from the clerk and the police they can help you find out who that dog owner is.

But in the circumstances where you know who the dog owner is, you find out who the dog owner is, you either contact them to find out whether they have homeowner’s insurance, or better yet, you contact an attorney like our office, we find out if there’s homeowner’s insurance. And we’re able to access this homeowner’s insurances to pay for medical bills, lost wages if there are any, scarring, pain and suffering, and things of that nature.

What Advice Would You Give to Dog Owners to Ensure They are Safe?

John: And then finally, do you have any advice for dog owners to just ensure that they’re being safe, as safe as possible, and making sure that their dog is not in a position where it’s going to bite someone?

Kevin: A dog owner should be aware of how their dog responds to certain situations, to certain environments with a certain number of people around, children. Those are all things that a dog owner should be aware of for their dog and then to avoid those situations as best they can that may cause anxiety to the dog or cause the dog to act or respond a certain way. We’re seeing so much more of this idea that dog owners want to spend time with their dogs, and that’s understandable, but they may be putting those dogs into certain situations with others around in public that they’re just not considering because they want to spend time with their dog.

And they’re thinking about that relationship versus how the dog may respond in certain situations, like inside of a store or inside of a carriage at a store with people wanting to show interest in coming over to pet the dog and things like that. So for a dog owner, enjoy the time with your animals and your dog as best you can, but be mindful of how your dog responds in certain situations and in certain environments. And do your best to avoid putting your dog in a situation where it may not feel comfortable and take action that you just not expect.

John: All right. Well, that’s all really great information. Rob and Kevin, thanks again for speaking with me today.

Robert: Thanks, John.

Kevin: Thank you, John.