December 1998
The Biting Edge of Canine Law
by Daniel Warner
Dogs and humans have interacted for tens of thousands1 of years, and ever since the beginning of the relationship there have been dog bites. The law surrounding this toothy issue is a constant of human society through the ages. Currently, dog bites are common and expensive. Estimates are that 4.7 million Americans were bitten by dogs in 1995; 2.8 million of those bitten were children.2 In 1996, U.S. insurance companies paid out a record $250 million for dog-bite claims; State Farm Insurance Company alone paid out $80 million in dog-bite claims for 1997.3
This brief article traces Washington dog law by examining the statutory and common-law rules applicable in this state.
The Statutory Regime
Prosser observes that "the often-repeated statement that ‘every dog is entitled to one bite,’" is not the law."4 The common-law rule was that there was no owner liability for dog-bite damages unless the owner had knowledge of the dog’s dangerous propensities such as would put a reasonable owner on notice that the dog should not have access to strangers. That is not the law in Washington.
RCW 16.08.040 provides as follows:
The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.
This statute has caused some interpretation problems. The provision that the dog owner should be liable for dog-bite damages to any person "in or on a public place" seems clear enough: a person jogging on a street or road, bitten by a dog, can recover from the dog’s owner, irrespective of the owner’s knowledge of the dog’s propensities. The provision that the owner will be liable for dog bites if the victim is "lawfully in or on a private place…," however, has become grist for a number of decisions.
In 1970, the Washington State Court of Appeals held that a delivery man returning cleaned clothes to the defendants’ house was not "lawfully" on the property because he was not there—as RCW 16.08.050 then put it—"in the performance of any duty imposed upon him by the laws of the state of Washington or of the United States or the ordinances of any municipality..."5 There was a duty to return the cleaning, but it was a duty "established by agreement or choice," as opposed to one thrust upon the victim by law. Furthermore, the Supreme Court of Washington held in 1976 that a social guest of the defendant on the defendant’s property was not "lawfully on the private property" for the purposes of the statute because, again, he was not there as the result of a duty imposed by law.6
The legislature changed the law in 1979. "Lawful presence" now includes on the premises of the owner "with the express or implied consent of the owner: Provided, That said consent shall not be presumed when the property of the owner is fenced or reasonably posted." (RCW 16.08.050). So if the owner’s dog bites a delivery person or a social guest, the owner is liable, as such a person is given implied consent to be on the property. In a 1983 case where the plaintiff was bitten while she was walking along a railroad right-of-way (considered by the railroad a permissive entry onto its premises) abutting the defendant’s unfenced yard, the court of appeals found that the victim was "lawfully in or on a private place." 7
Victim’s Contributory Negligence
The statutory provision noted above certainly suggests that a person on the owner’s premises without express or implied consent—that is, a trespasser—is fair game for being attacked by the resident dog. Such a trespasser would be contributorily negligent. No cases, however, have presented this fact situation. In other cases where dog owners have argued that the victim’s contributory negligence should exonerate them from liability, the argument has met with almost no success.
In one notable case, the plaintiff-victim trespassed inadvertently onto the defendant’s property which appeared confusingly to be part of the public way. An admittedly vicious dog tethered to a 24- foot chain attacked the plaintiff. The Washington court held that "the ground of liability in an action for injuries caused by a vicious dog is not negligence in the ordinary sense, hence, in its ordinary meaning, contributory negligence is not a defense."8 The court reasoned:
If it is established that a dog is of a vicious nature and that the owner of such dog has knowledge, actual or constructive, of that fact, the owner keeps that dog at his peril, and is chargeable for any failure to so keep it that it cannot do any damage to any person who, without essential fault, is injured by it... The mere fact of trespassing on the grounds of another is not, in and of itself, contributory negligence which will defeat an action to recover damages...9
More generally, the Washington court has observed—restating its position in the case noted supra—that "we are already aligned with those courts which hold that contributory negligence is not a defense in a common-law action based upon scienter."10
As a matter of law, a small child cannot be contributorily negligent11 (by teasing or tormenting a dog), but his parents might be negligent for allowing him to play with the dog. Parents who allowed their four-year-old son access to a room which contained "two strange, active Doberman pinscher dogs" were alleged to be contributorily negligent.12 The Washington Court of Appeals, in overturning a summary judgment for the dog owner, observed that contributory negligence of parents in failing to supervise their children could be a defense, but that such conduct "must rise to the level of willful and wanton misconduct" to be actionable13 (there was no proof, notwithstanding several animal-control officer contacts with the owner, that the dogs were vicious).
In the same case, it was alleged that the City of Everett also contributed to the victim’s injuries by failing to enforce its animal control laws when its officers had (several times) responded to complaints about the defendant’s dogs running loose by giving the owners warnings about them. The argument was that where a statute (city ordinance in this case) creates a duty upon the city (to protect citizens from injury from animals), breach of the duty is negligence. In overturning the summary judgment in favor of the City, the Court of Appeals observed that the City would be liable only if the breach of duty was, in view of all the circumstances, "unreasonable,"14 a matter of fact to be determined at trial.
No case found in Washington actually presents the defense of contributory negligence in a dog-bite case, but clear statutory language allows it. RCW 16.08.060 provides as follows:
Proof of provocation of the attack by the injured person shall be a complete defense to an action for damages.
And RCW 16.08.090 provides, in part:
Dogs shall not be declared dangerous if the threat, injury or damage was sustained by a person who, at the time, was committing a willful trespass or other tort upon the premises occupied by the owner of the dog, or was tormenting, abusing, or assaulting the dog or has, in the past, been observed or reported to have tormented, abused, or assaulted the dog or was committing or attempting to commit a crime.
The Owner Relationship
In most cases, the owner of a dog that bites is liable for the injuries. Although there might be some situations in which a non-owner is liable for injuries caused by a dog,15 no such cases currently exist in Washington.
In a 1980 case, the Washington Court of Appeals was asked to find liability where the original tenants left the rented premises and, notwithstanding provisions of the rental agreement prohibiting subleasing and dogs, subleased the duplex apartment to subtenants with three dogs. The landlords lived in another city and learned of the dogs’ presence only two or three days before the injury complained of. The court concluded that the landlords neither knew nor "reasonably should have known ‘that the dog (had) vicious or dangerous propensities.’"16 Plaintiffs urged the court to find the landlords liable on the theory that they knowingly maintained "dangerous conditions and activities" on the premises. The court declined to find the landlords liable, holding that in this situation knowledge of the dog’s propensities was essential and that even if the landlords did breach a duty of care, such a breach was not the proximate cause of the injuries.17
Ten years later, a factually similar case was back before the Court, except that this time the landlords did know that the injury-causing dog was vicious. The Court of Appeals specifically declined to adopt the plaintiffs’ theory of liability,18 holding that "The common law rule, which is the settled law of Washington, is clear: only the owner, keeper, or harborer of [a dangerous] dog is liable. The landlord of an owner, keeper or harborer is not."19 The Washington State Supreme Court reiterated this rule in 1994 in a case in which the defendants rented acreage to a tenant who, with the landlords’ knowledge, kept a tiger which attacked the plaintiff. The Washington court said the issue was "not a question of fact…. Rather, the issue is a matter of law, and we conclude that landlords have no duty to protect third parties from a tenant’s lawfully owned but dangerous animals."20
Criminal Liability
RCW 16.08.080 provides for registration of "dangerous dogs." Section 100(2) provides criminal penalties for the owner of a dangerous dog if the owner has a prior dangerous-dog conviction and the dog bites a person or a domestic animal. Under Section 100(3), the owner of any dog that causes severe injury or death to a person is guilty of a class C felony, "whether the dog has previously been declared potentially dangerous or dangerous." This ambiguous language gave rise to a lawsuit, State v. Bash (925 P2d 978 Wash., 1996) in which the Washington Supreme Court held that criminal liability arose only if the dog causing serious injury had been previously classified as potentially dangerous or dangerous. The statute does not create a strict-liability offense.
A few other dog-related criminal statutes are scattered throughout the Code. Among them: it is a crime to harm a police or "accelerant detection" dog (RCW 9A.76.200) or a dog guide or service animal (RCW 49.60.370), to "dognap," to conceal identification tags on a dog, to willfully or recklessly kill or injure any pet, or to sell another person’s pet for research purposes (RCW 9.08.070[1] and [2]).
In the last ten years there has been periodic media coverage of attacks by vicious dogs, especially pit bulls. Legislation to outlaw the possession of specific breeds is for local enactment. Washington cases claiming such laws are constitutionally infirm have not met with success.21
Modern Washington State dog law is, for the most part, fairly simple: if your dog, unprovoked, bites somebody who isn’t a trespasser, you’re liable.
Notes
1 The earliest evidence of clearly domesticated dogs is found in camp deposits from Australia that have been carbon-dated to 30,000 year ago. These dogs, called dingoes, were brought to Australia by ancestors of aborigines. Dingoes supplanted the native dog-like marsupial "wolves" (thylacines), which are now extinct except in a few remote areas of Tasmania. John C. McLoughlin, The Canine Clan, 89 (1983). The cave frescos of Spain, dating back about 10,000 years (the Mesolithic Age), show clear images of men hunting with dogs. Fernand Mery, The Dog, 16 (1968).
2
United States Postal Service, Postal News, "Children Primary Focus of National Dog Bite Prevention Week," June 7,1996.
3
Journal of the American Veterinary Medical Association, "Dog Bite Prevention Campaign: Nipping a Problem in the Bud," May 1, 1998.
4
Prosser, Torts, 4th edition, s. 76, p. 501 (1971).
5
Reis v Becker, 473 P.2d 856, 857 (Wash. Ct. App., 1970), construing former RCW 16.08.050.
6
Dominick v Christensen, 548 P.2d 541, 542 (Wash., 1976).
7
Hansen v Sipe, 664 P.2d 1295, 1296 (Wash. Ct. App., 1983).
8
Brewer v. Furtwangler, 18 P.2d 837, 838 (Wash. 1933).
9
Ibid., at 621.
10
Johnson v. Ohls, 457 P.2d 194, 196 (1969). In this context, "scienter" of course refers to the dog-owner’s knowledge, actual or constructive, that the animal was vicious and the owner’s actions in allowing innocents access to it.
11
In Arnold v. Laird, 621 P.2d 138, 139 (Wash., 1980), the court observed that whether or not a four-year-old child might have teased a dog was irrelevant, as a child of such age "was not capable of contributory negligence as a matter of law."
12
Livingston v. City of Everett, 751 P.2d 1199, 1201 (Wash. App. 1988).
13
Id. The case was remanded for further exploration of this issue, among others.
14
Id. at 1201.
15
Such a situation is alluded to in dicta in the Livingston v. City of Everett case, note 12, supra.
16
Shafer v. Beyers, 613 P.2d 554, 556 (Wash. Ct. App., 1980), internal citation omitted.
17
Id., at 557.
18
The rule in California is that the landlord is liable if he knows the dog is dangerous and if he has the right to remove the dog by retaking possession of the premises. Uccello v. Laudenslayer, 118 Cal.Rptr. 741, 734 (1975).
19
Clemmons v. Fidler, 791 P.2d 257, 259 (1990). In the Livingston case (supra , note 12), plaintiffs argued that the city of Everett should have been a harborer of the animal as part of its animal control duties.
20
Frobig v. Everett, 881 P2d 226, 231 (1994).
21
See, for example, American Dog Owners Assn. v. City of Yakima, 777 P.2d 1046 (Wash, 1989), wherein the Supreme Court of Washington held that a Yakima ordinance banning "pit bulls" was not unconstitutionally vague.
Daniel Warner is an associate professor of business law at the College of Business at Western Washington University. He is the author of a college textbook on The Legal Environment of Business, and he is the immediate past Board President of the Whatcom Humane Society.
