- posted: Nov. 07, 2018
Up to four different legal theories address how owners of dogs may be exposed to liability in the event the dog bites someone. The rational of each is quite different.
Under the first theory, if the owner is aware of the dangerous propensities of the dog, the owner is under a common law duty to ensure that the dog could not attack or injure anyone. (See generally Boosman v. Moudy, 488 S.W.2d 917 (Mo. App. W.D. 1972).) Historically, at common law, if a dog previously bit someone, the owner was exposed to liability for keeping a dog with known dangerous propensities. Of course, even if the dog had never bit anyone before, there may still be reason to believe the dog is dangerous if it is a known aggressive breed or had any specific aggression training.
At common law, if there simply was no reason to believe the dog was dangerous, the owner might not be liable for the first bite incident, because there was no reason to think the dog posed a threat. The old saying that each dog gets one bite came from this notion.
Under the second theory, in 2009 the Missouri Legislature adopted a form of strict liability for dog bites in the form of §273.036, RSMo. Under §273.036, RSMo., the owner need not have notice of any dangerous propensities of the dog -- it need only bite someone.
However, the legislature did build in an exception for a dog which bites a person with provocation. If a burglar breaks into a house, the dog may be considered to have been provoked to bite to protect its owner. If a person torments a dog and is bitten, the dog may be considered to have been provoked.
That said, once the Plaintiff proves they were bitten by a dog owned by the Defendant, the burden of proof then shifts to the dog owner to prove provocation.
Under the third theory, under §322.145, RSMo the owner of any animal that potentially can bite or otherwise can potentially transmit rabies is strictly liable for all damages done by the animal. By definition, canines both bite and can transmit rabies absent vaccination. Owners of dogs are exposed to statutory strict liability for all damages caused by the dog under §322.145, RSMo.
Under the fourth theory, dog owners may be liable under the concept of negligence per se. Negligence per se exists when a person violates statutorily mandated public safety behavioral standards. (See generally Blackwell v. CSF Properties, 443 S.W.3d 711 (Mo. App. E.D. 2014).)
Under §578.024, a crime is committed if a person keeps a dog that has previously bitten anyone, and that dog then subsequently bites a second person. Keeping a dangerous dog is subject to statutorily mandated public safety behavioral standards, and can result in criminal charges if the dog bites a second person -- and so the owner may be determined to be negligent per se for violating §578.024, RSMo.
All those theories aside, dogs are extremely popular. It is difficult to find a jury that does not have dog owners among its members. Except for dangerous breeds, or dogs of known dangerous propensities, jurors are often reluctant to impose liability for a totally unexpected dog bite despite strict liability statutes.
It is important that you have a skilled Missouri injury attorney for claimants, or insurance attorney for dog owners, who is familiar with Animal Law review all the circumstances in your case, and advise you on how the case can best proceed to protect your interests.
By: Joseph W. Rigler
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