ONE BITE NOT THE RULE

In a former life, my girlfriend and I had two dogs which were like family members. The Alpha of the pair was a small little terrier mix who bore a resemblance to Benji but believed he was more the size of Clifford.   The little terrier was a brave and territorial dog willing to take on anyone and anybody that came near his yard and family. On more than one occasion, the little terrier cornered pedestrians who tried to use his yard as passageway through the yard. Despite his territorial and protective nature, the terrier was truly an affectionate and lovable dog.  However, there were a few close calls where that terrier nearly bit someone.

According to a 2007-2008 Pet Owners Survey, there are more than 45.6 million households that own dogs as pets. Many of these households own multiple dogs.  The risk to any dog owner in Pennsylvania of criminal and civil liability from a first time dog bite is significant.

In Pennsylvania, it has long been the law that an owner of an animal was not responsible for an animal bite unless the owner knew or should have known of the animal’s propensity to bite. In Andrews v. Smith , 324 Pa. 455, 188 A. 146 (Pa. 1936), the Pennsylvania Supreme Court held that “[it would be unfair to hold the owners of animals that are normally harmless responsible for the vicious acts of these animals unless they were put on notice that the animal was vicious.” This law came to be known as the “one free bite rule”

Like all laws, Pennsylvania law with regards to dog bites has evolved to meet society’s needs for safety.

Under Pennsylvania’s Dangerous Dog Bite statute, 3 P.S. § 409-101 through § 459-1205, an owner of a dangerous dog as determined under statute, could be criminally liable if the dangerous dog attacked a person, or if a person’s domestic animal, dog, cat has been killed or injured without provocation.[1]  Prior to the 1996 amendment to the Dangerous Dog Bite statute, the determination of a dog as dangerous could only be made “upon evidence of a dog’s history or propensity to attack without provocation based upon an incident in which the dog” attacks, has inflicted severe injury, or attacked without provocation. Eritano v. Commonwealth, 547 Pa, 372, 379 (1997). One instance of a dog attack was not sufficient to declare the dog dangerous under the Dangerous Dog Bite statute prior to the 1996 amendments. Id.

As amended in in 1996, 3 P.S. § 409-502-A, states the owner or keeper of the dog may be guilty of the summary offense of harboring a dangerous dog if the magisterial district judge finds beyond a reasonable doubt that the following elements of the offense have been proven:

  1. The dog has done any of the following: (i) Inflicted severe injury on a human being without provocation on public or private property; (ii) Killed or inflicted severe injury on a domestic animal, dog or cat without provocation while off the owner’s property; (iii) Attacked a human being without provocation; or (iv) Been used in the commission of a crime.
  2. The dog has either or both of the following: (i) A history of attacking human beings and/or domestic animals, dogs or cats without provocation; and (ii)  A propensity to attack human beings and/or domestic animals, dogs or cats without provocation. A propensity to attack may be proven by a single incident of the conduct described in paragraph (1)  (i), (ii), (iii) or (iv). (emphasis added).
  3. The defendant is the owner or keeper of the dog.

In Commonwealth v. Hake, the Pennsylvania Commonwealth Court found the owner of a dog guilty of the summary offense of harboring a dangerous dog in violation of the Dangerous Dog Bite statute where the dog attack was the dog’s first attack. [2] The Commonwealth Court found the 1996 amendments to the Dangerous Dog Bite statute “specifically provide that the propensity to attack may be proven by a single incident of the infliction of severe injury or attack on a human being, clearly permitting a finding of a “propensity” to attack human beings by virtue of the attack in question, even if it is only the first attack.”[3] In a subsequent case, Commonwealth v. Baldwin, the Pennsylvania Commonwealth Court, stated:

The 1996 amendments [present 502-A of the Dog Law] clearly address the legislature’s response to holdings, such as Eritano, which required multiple incidents before liability could have been imposed. The 1996 amendments added specific words such as “single incident” to ensure that where it is clear from one attack that a dog is dangerous, that the “owners or keepers” are criminally liable for the summary offense of harboring a dangerous dog.[4]

Once found guilty of harboring dangerous dog, the owner of the dangerous dog must within thirty (30) days confine and register the dog as a dangerous dog with the Department of Agriculture.[5] Under the Dangerous Dog Bite law, the owner of the dangerous dog must: (1) present evidence that the dangerous dog is properly confined and the premises posted with warning signs; (2) pay court-ordered restitution to the victim of the dangerous dog; (3) permanently identify the dangerous dog by having a micro-chip implanted in the dog; and (4) obtain a surety bond in the amount of $50,000.00 payable to any victim, if an authorized business within the state, or a policy of liability insurance in the an amount of at least $50,000.00.[6] Any cost to the victim for medical treatment resulting from an attacking or biting dog must be paid fully by the owner or keeper of the dog. [7]

In civil matters, Pennsylvania Courts have found that an unexcused violation of the Dog Law is negligence per se. Miller v. Hurst, 302 Pa. Super. 235, 244, 448 A.2d 614 (Pa. Suer. Ct. 1982). Where proof of negligence rests upon a violation of the Dog Law, liability does not attach unless the violation is a substantial factor in bringing about the injuries sustained. Id. An action for personal injuries may be defended, where appropriate, by showing that the plaintiff was guilty of contributory negligence which caused his or her own injuries. Id. A deliberate violation of the Dog Law suffices to show negligence. Id. There is no strict or absolute liability in dog bite cases. An owner may always show that he used due care in confining his dog and/or that the dog escaped despite the exercise of reasonable care.[8] As with any negligence or negligence per se action, a Plaintiff may recover not only compensatory damages, but also pain and suffering based on the severity of the injuries.

[1] 3 P.S. § 409-502-A states, [a]ny person who has been attacked by one or more dogs, or anyone on behalf of the person, a person whose domestic animal, dog or cat has been killed or injured without provocation, the state dog warden or the local police may file a complaint before a magisterial district judge charging the owner or keeper of the dog with harboring a dangerous dog.”

[2] Commonwealth v. Hake, 738 A.2d 46, 50 (Pa. Commw. Ct. 1999).

[3] Id. at 50.

[4] Commonwealth v. Baldwin, 767 A.2d 644, 646-647 (Pa. Commw. Ct. 2000).

[5] 3 P.S. § 409-503-A.

[6] Id.

[7] 3 P.S. § 409-502

[8] Villaume v. Kaufman, 550 A.2d 793, 379 Pa. Super. 561 (1988); Deardorff v. Berger, 414 Pa. Super. 45, 606 A.2d 489 (1992).

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