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Creative Ways to Prove Liability in Dog Bite Cases Under the One Bite Rule

Consideration was given for the editing and publication of this post.

Introduction: 

13 States in the United States follow the One Bite Rule while 5 others have a blend of the One Bite Rule with Strict Liability Law.  The other 32 states are strict liability.   In One Bite Rule States, the victims face a difficult burden of proving liability when there are no prior bite reports on file with the local animal control. This article discusses these difficulties and offers some creative solutions that I have used in my 23 years of handling dog bite cases.

The One Bite Rule or “One Free Bite Rule” as it is also called, is a common law legal theory that develops from Courts adopting the Restatement of Torts views on animal liability laws. See Restatement (Second) of Torts Section 509-518 (1965). This law basically says that a dog owner is strictly liable for the conduct of his dog if the owner knew or should know that has dog has dangerous propensities abnormal to the tendencies of domestic animals. That is, if the animal has shown a tendency to be vicious toward a human (excluding a trespasser) in the past, the owner is liable when it strikes again.  However, proving the owner’s knowledge can be difficult if there are no prior reports of bites and your client does not know the dog owner.  Attorneys handling these cases may have to look into other ways to establish liability such as social media, neighbors, researching prior lawsuits, and tracking the residence history of the dog owner in order to do the best job possible for their clients.

The Misnomer of the Name

The name “One Bite Rule” is misleading. The rule does not actually require a bite. It simply requires an aggressive act toward a human that the owner is aware of.  Knowledge on the part of the owner is critical.  Additionally, the act must be toward a human.  An aggressive act towards an animal by itself will not establish the prior act required to trigger strict liability.

Challenges of The One Bite Rule

In states where the One Bite Rule is the prevailing law, proving liability can be a difficult burden for the bite victim if the dog has no prior bites on record. Bites often result in a report that it a matter of public record. A mere act of aggression often does not result in a report being made. When there are no prior reports on record, the person most likely to be aware of any prior incidents is the owner. 

In 22 plus years of handling dog bite cases, I have seen many owners lie about prior acts and/or “remember” them in a light much less vicious than the victim recalls them. Many people have a tendency to see their dog as their “baby” and they will do whatever they have to in order to protect their baby.  I have even seen an owner flat out deny that their dog was involved in the prior bite even though animal control picked up the dog roaming the streets after the bite, had the victim identify the dog, and issued the owner a ticket for the dog running at large.  

Creative Ways to Establish the Prior Aggressive Acts

When investigating a dog bite case where no prior bite reports exist and our client doesn’t know of the dog’s history from knowing the owner, an attorney has to leave no stone unturned and look for creative solutions.  The key is to look for admissions and to look for people who will gladly tell you of past issues with the dog.

Social Media as Evidence

When a defendant leaves their social media account public, this can be used against them as admissions if they admit to a prior incident. By checking a defendant’s social media shortly after an attack, I have found instances of owners making statements like “well I had to say good by to fluffy today because he bit a third person.”  To find this kind of evidence, you have to be quick and check this before their insurance company or lawyer tells them to make the account private.  Another trend to be aware of is that some pet owners give their pets their own social media page.  These can be a good source of past issues.

Proving Priors Through the Neighbors

When a dog truly is a problem in the neighborhood, often the neighbors are your best friends. Nobody likes a mean dog that gets out and terrorizes the kids in the neighborhood.  If the injuries warrant it, hiring an investigator on a set budget to go know on the neighbors’ doors to the left, right and, rear can produce valuable information and witnesses. If the dog has a habit of getting out, their yards are the most likely place for the dog to wind up. 

To do this, set the investigator on a budget and tell them to take a statement if they find a person with helpful information.  This prevents them from just wasting a bunch of time and money taking statements from people who know nothing. I have located many a prior incident simply by my investigator asking and the neighbors pointing out that they heard the dog bit-so-and-so down the street.

Proving Priors Through Past Lawsuits

It is always smart to check the dog owner’s lawsuit history. Obviously, if someone else sued them due to the dog’s past conduct, you have the evidence you need. This sometimes happens when prior bites are not reported or recorded property. However, you can also find out people who might help you from prior lawsuits that have little to do with the dog. In a case where the dog owner denied any priors, I was able to prove she was lying by contacting the father of her child whom she had filed a restraining order against in an attempt to keep him from his daughter.  When I called him, he was very willing to testify as to all of the past events where the dog had bit their mutual friends and the discussions where he has told her the dog was too vicious to be around his child.

Check the Dog Owners Past Residences

There is no national database for dogs that bite nor for negligent owners.  If a dog bites, the report is filed with the city or county animal control division that has jurisdiction.  If the dog owner moves to a new city or county, the local animal control will likely have no knowledge of the prior bites.  In some cases, determining prior residences can only be done by deposition during litigation. However, if the defendant is a homeowner, you can often find out by their deed records, driver’s license records, social media, or other available public records where they lived before. Then, you can send a freedom of information act request to those animal controls as well. I have seen cases where the dog owner moved out of the county to prevent their dog from getting put down due to a severe prior incident. Thus, it is worthwhile to check into past addresses and the dog’s bite history there.

Conclusion

Establishing liability under the One Bite Rule often presents challenges for the dog bite victim and their lawyer when there is no prior bite report at the local animal control.  However, there are other ways to investigate prior incidents by using tools such as social media, investigating neighbors, and checking public records such as court records and/or residency records.  By having these tools in your arsenal, you may be able to establish liability in a case that seems impossible at first blush.

Bio:

Paul H. Cannon is a trial attorney and shareholder at Simmons and Fletcher, P.C. He has been practicing personal injury since 1995. He is Certified in personal injury trial law by the Texas Board of Legal Specialization since 2005. He has handled dog bite cases since around 1997.  He has been a faculty lecturer on the subject of dog bite law for Strafford Publishing, My Law CLE, and Law Practice CLE. several companies that produce Continuing Legal Education courses.

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