Free Bite? Maybe Not: Expanded Liability For Dog Bites

September 28, 2022 / CM Reports / Writing and Speaking

By Paul V. Esposito

You can’t help but love ’em. Dogs. Our relationship with these descendants of the gray wolf is unlike that with any other animal. To many people, they are like people—even like family. Maybe it’s because they’ll let you hug them. Maybe it is because they don’t talk back. Whatever the reason, people want them. Just look out the window and notice how many owners are walking multiple dogs. They’re everywhere, even in stores and shopping malls.

There is an adage: every dog gets a free bite. It generally means that unless an owner is aware that a dog has bitten someone, the owner had no duty to prevent it from recurring. But as dog owners Jeffrey and Lisa Drake learned, some adages are not what they used to be. Daniels v. Drake, 2022 Ind. App. LEXIS 303.

Facts

Jeffrey and Lisa Drake own 16 acres in rural Indiana. They have no neighbors but do have five dogs including Max, a two-year old, 140-pound male Great Dane. His head comes up to Lisa’s waist. Max had the run of the roost. He had dealt with the outside world a few times, but largely did not encounter people other than delivery personnel—at whom he barked.

Damon Daniels is a FedEx delivery driver, new to the Drake property. Damon honked to get Lisa’s attention and asked if Max—who accompanied Lisa—was safe. After Lisa gave a thumb’s-up, Damon walked a package over to her. With that, Max barked once and bit Damon on the abdomen. Thinking that Damon was exaggerating, Lisa insisted on seeing the bite. He showed her three puncture wounds. Max had lacerated Damon’s abdominal wall and caused substantial swelling.

Damon sued Jeffrey and Lisa for damages arising out of the bite. The Drakes filed affidavits of Max’s vet, as well as their own affidavits, as to their lack of knowledge of any dangerous or vicious propensities. Damon filed an affidavit of a canine behavior expert/animal control officer. For a while, things looked good for the Drakes. The trial court granted them summary judgment. But it didn’t hold. The Indiana Court of Appeals has recently ruled that Damon is entitled to prove the Drakes’ liability at trial.

Analysis

The Court of Appeals acknowledged that a dog owner is not always liable for the conduct of their dog. The Indiana Supreme Court has ruled that an owner must know or have reason to know a dog’s dangerous or vicious propensities. But knowledge may be constructive, and it does not just apply to the dog involved in a biting incident. It applies to the dog’s breed. Even if the dog had not previously bitten or attacked anyone, an owner is held to constructive knowledge of the dangerous propensities of the dog’s breed.

That is what caused problems for the Drakes. Damon’s expert submitted an affidavit stating: (1) Great Danes are bred to be guard dogs and wild boar hunters, (2) they have a natural tendency to be territorial and wary of strangers, (3) they will be defensive of their territory when a stranger approaches, (4) isolation from people, lack of socialization, and lack of roaming restrictions increase their territorial aggressiveness, (5) males are more aggressive than females, and (6) Great Danes are ranked as the 10th most dangerous dog in the U.S. and Canada. The affidavit created a genuine issue of fact that must be resolved at trial.

Learning Point: The adage that a dog is man’s best friend probably still has a lot of mileage left on its tires. But it’s important for people to understand that in getting a dog, they are getting history and breeding. Just one bite can cause serious legal issues, let alone the physical and emotional ones, for the owner, a loved one, or a mere passerby. In buying or keeping a dog, it is worth the time to learn the facts.

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