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ABCs of Bites
Our dog law expert offers counsel on first bites, “free” bites, and laws with bite
Dog Law

Q: We recently moved to a wonderful new neighborhood and in honor of the occasion, our dog decided to nip our new neighbor—and her dog. My husband says not to worry since it “was the first time that’s ever happened and the first bite is free,” but I plan on entertaining a few worries anyway. Tonight’s guest list includes: Does the “one free bite” rule apply to a single bite or to a single incident? To bites to animals as well? Is it one per year, or one per location? Actually, come to think of it, is there such a thing as a “one free bite” rule and is it going to help us at all?

A: First, I’m with you in worrying in general. I believe for a responsible dog owner, a modest amount of anxiety is a much healthier response than blithe disdain. Part of dog ownership is to be aware that everything your dog does affects those around you, and to be conscientious therefore requires vigilance— and sometimes a little fretting. Second, your specific concerns have the added benefit of being well-founded.

Among its fellow urban legends, the belief that “every dog is entitled to one free bite” seems to be a gold standard— just ask anyone you know and you’ll hear that the first time your dog bites someone, you’re off the hook because you simply cannot be held legally responsible.

The truth is that the majority of state laws are to the contrary. Nearly every jurisdiction holds fast to the premise that known dangers cannot be ignored or excused. If a reasonable dog owner should have been aware that the dog was likely to bite, that owner is liable for even the first nip. The core rules revolve not around specific types of locations, types of animals or time periods, but around the general concept of “propensity”: the likely inclination of the dog to engage in any harmful act to anyone anywhere. While it is true that a dog’s history can sometimes be informative in that regard, the lack of a previous bite is not the only factor; if certain personality or behavioral aspects of a “never-having-bit-before” dog reveal the propensity to harm, then any harm that results is still actionable.

Note that the test is objective, not subjective—that is, the question is would a reasonable owner have known or been aware of that dog’s propensity, not would the dog’s actual owner have known or been aware. The law does not reward people for keeping themselves ignorant of potential risks, for irrationally discounting risks that others pay attention to, or for holding themselves to a special standard available only to them simply because they happen to know the dog better than others.

Unfortunately, I must actually add a little bit to your worry guest list. If carelessness can be shown in the manner in which the dog was being physically kept or controlled, the dog owner can sometimes be held responsible, even if the dog had no propensity at all. That means that if the way in which your dog was able to get to the neighbor in the first place was by virtue of a broken gate or fence, failure to use a leash when you were supposed to use one, or neglecting to keep an eye on where the dog was and what he was doing, then evidence of lack of propensity won’t affect the final outcome. The improper confinement or supervision exposes you to legal trouble anyway.

Finally, be aware that all of those principles apply to “damage” or “injuries,” not just to “bites” alone. Rules on liability do not particularly distinguish between different results of the dog’s misconduct; owners can be liable for a scrape to a person’s leg, a puncture in another dog’s ear, knocking a kid off a bicycle, or a break in a neighbor’s fence. The different measure and amount of damages in those varying situations, on the other hand, can be stark.

As Freud has pointed out much more poetically than I ever could, anxiety— though an initial source for positive action—can become harmful at the point that it paralyzes you from taking any action at all. If your spouse is no real help in allaying or addressing legal concerns, and if you have had enough of looking deeply into your dog’s eyes to try to decipher what he was really thinking when he did that, then perhaps you may wish to direct your worry-energy in a productive direction: toward chatting with a lawyer instead.

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This article first appeared in The Bark,
Issue 59: Apr/May 2010

Geordie Duckler, JD, PhD, heads the Animal Law Practice, a unique private law practice in Portland, Ore., whose main focus is on the resolution, litigation and trial of animal-related disputes.

animallawpractice.com
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