When a victim has suffered injuries from a dog bite, what remedies does he or she have? You might think that this should have an easy answer, but it does not. Attorneys generally know that there is liability when a dog bites someone for the second time. The real difficulty is in determining what counts as the first bite. The dog is essentially given a “free pass” the first-time it bites a victim without provocation. The only way to recover damages for a first time bite is under strict liability or negligence.
Strict liability in a dog bite case is a three-part test. You must be able to prove that: (1) the animal is of a vicious, dangerous, or mischievous nature; (2) the owner has actual or constructive knowledge of such characteristics; and (3) the injury or damage resulted from such propensities of which the owner had knowledge. Petry v. Gasca, 1994 Tex. App. LEXIS 821 (Tex. App. Houston 14th Dist. Apr. 14, 1994). There is only one defense available to the dog owner in a strict-liability dog bite case: if the victim voluntarily accepted the risk by knowing that the dog was vicious and still went in its presence after being warned. Restat 2d of Torts, § 515 (2nd ed. 1979). To prove negligence, the plaintiff must show that the owner had actual or constructive notice of facts which would put an ordinary person on notice that allowing this dog to run at large would cause someone injury. An owner cannot be charged with negligence if the dog caused an injury on its owner’s property unless the owner knew he was vicious or unruly. Id.; see also Restat 2d of Torts, § 516 (stating that liability for dog bites does not extend to a home owner whose dog bites a trespasser while the trespasser is on the homeowner’s property).
Everything comes down to what the owner knows and what he does in regards to his dog. If the owner knows his dog has a “dangerous propensity” and he does not take precautions, he can be held liable. In Harris v. Barefoot, dangerous propensity was defined as “whether the owner should know from past conduct that the animal is likely, if not restrained, to do an act in which the owner could foresee injury to a person or property.” 704 S.E.2d 282 (2010). The problem is proving the owner knew of a dangerous propensity. Case law shows that even when a dog has been aggressively protective by barking and nipping at people it is still not enough to give the owner constructive or real knowledge of a dangerous propensity. Bowman v. Davidson, 2015 Tex. App. LEXIS 6706 (Tex. App. Texarkana July 1, 2015). In Bowman, a “nip” was not an unprovoked action. If the bite was provoked by fear or by actions that might induce the dog to bite, the bite will not be counted as the dog’s “first bite.” An unprovoked nip or bite is also not enough to give the owner of the dog an impression that his dog now has a dangerous propensity.
Unless the dog shows such an aggressive attitude that a prudent owner would think it likely that the animal will cause injury to someone or something, there is no dangerous propensity. If the dog has never bitten anyone, but the owner should still have known that there was a likelihood the dog would bite or cause violence for an unprovoked reason, the owner can still be liable, even if the owner has exercised the utmost care. Restat 2d of Torts, § 509 (2nd ed. 1979). Contrary to popular belief, Texas law does not consider any specific breed of dog to have an inherently dangerous propensity. Some states consider certain breeds, such as pit bulls, to have inherently dangerous propensities, but Texas is not currently one of them
If the dog has bitten someone in the past for an unprovoked reason, this dog is considered a “dangerous dog” in Texas. Tex. Health & Safety Code § 822.041. An owner must meet several requirements and take certain safety precautions if he owns a dangerous dog. If the dog that bit your client has bitten another victim in the past and is considered to be a “dangerous dog,” then you have a great case.
As you can see, all cases involving dog bites are not treated equally under the law. If the dog has never bitten anyone in the past and the owner can show that he had no idea the dog would act in such a violent, unprovoked manner, courts tend to rule in the defendant’s favor. Even when the dog has bitten someone in the past, the dog’s owner may not always be held liable.