Fido’s First No Longer A Defense

There are many myths when it comes to “the law” in general and “Missouri law” specifically.

Despite the belief of many: you can be prosecuted and convicted for driving while intoxicated with a blood alcohol level below .08; a contract doesn’t always have to be in writing; and your dog doesn’t get “one bite” before you’re liable for the injury Fido* caused.

Let’s talk about that nasty dog bite.

There was a time when a dog owner (or cat owner, I suppose) enjoyed a level of immunity for the injury that man’s best friend (or cat) caused. Commonly referred to as the “one bite rule”, Missouri Courts previously held that the owner of a dog was only liable for the injury caused by the dog if the owner had actual (or constructive) knowledge of the dog’s “vicious propensities”. That’s not to say the dog had to bite someone for it to have displayed “vicious propensities.” Gnashing of teeth. Aggressive barking. Straining the leash. You get it. “Vicious propensities”. It became easier to call it the “one bite rule.”

Forget all of that.

Missouri’s law (previously the result of case law and now codified by statute) reads (in part) that

The owner or possessor of any dog that bites, without provocation, any person while such person is on public property, or lawfully on private property, including the property of the owner or possessor of the dog, is strictly liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owner’s or possessor’s knowledge of such viciousness.  Owners and possessors of dogs shall also be strictly liable for any damage to property or livestock proximately caused by their dogs… RSMo. 273.036

Note that:

  1. There is a defense available where the dog was provoked;
  2. The statute applies to owners and possessors (you take the neighbor’s dog for a walk? Arguably, you’re possessing); and
  3. Cats are off the hook (at least as far as this statute goes).

The abrogation of Missouri’s law on the issue occurred in 2009. Despite the fact that eight years have passed, many are still under the belief that they have no liability for their dog’s aggression if they hadn’t seen it before or had no knowledge of the dog’s “vicious propensities.” There is no longer any such requirement that the dog owner (or possessor) knew of such character traits.

That “strict liability” (i.e. the person bitten is not required to show that the owner was negligent or intended harm) means that the injury and the damages therefrom are all that need be shown for somebody to secure a judgment against the pet owner.

It should also be noted that the statute makes no distinction between breeds of dogs. While that notoriously vicious breed of dog and the injury caused by it may make the argument for damages and the amount of damages greater, it and that annoying “ankle biter” that takes some flesh off a toddler’s finger are indistinguishable under the statute as far as liability is concerned.**

Scenario #1: You’re walking Fido through a downtown festival (i.e. “public property”) and a child comes up to pet him. Or, Fido spots that three year old kid walking along with a turkey leg in her hand (which begs the questions: is this the best place to walk a dog and should a kid that age be eating a whole turkey leg?). Fido’s never bitten anyone and never displayed a desire to do anything but sleep and eat. Fido lunges at the kid, misses the turkey leg and gets a mouth full of fingers (or worse).

Result: Better grab your wallet and hope that your homeowner’s insurance covers you. Good luck saying that the turkey leg was “provocation”.

Scenario #2: Fido lunges at another dog, Fifi (or Ozzie)**, who is trying to get to that turkey leg and bites Fifi.

Result: Notice that the owner or possessor is liable for damages to “property”. While certain animal rights activists may declare that Fifi is not “property” good luck convincing a judge or jury of the same notion. Get ready to pay some veterinarian bills for Fifi.

Scenario #3: Fido’s on the front porch (i.e. “private property”) and the mailman, UPS, FedEx, Culligan man, etc. come up to the door for a delivery and Fido mistakes their leg for that turkey leg he saw down on Main Street.

Result: Call your insurance agent again and plan on picking up your mail and packages, etc. at the post office or elsewhere in the future.

Now, the obvious question is: who is “lawfully on private property and who isn’t”? There are too many nuances to the question to offer an answer here. However, assuming that a trespasser is fair game would be a huge mistake. While that person may not “lawfully” be on your property, you would be wrong to assume that Fido’s bite won’t result in injury, damages and, ultimately, a lawsuit. You may not be “strictly liable”, but you may be “liable” (if negligence or intent on your part were found).

Dog bites can obviously be very serious and result in both physical and emotional injury to young and old alike. Take some simple steps to protect yourself, your dog and that three year old with the turkey leg. Oh yeah, and the mailman and the rest of that bunch.

*Names have been changed to protect the identity of the dogs in these cases

**Notice that I did not name any breed here-I don’t want to offend the dog owners on either end of the spectrum

This information is not designed to solicit representation or offer legal advice and does not form the attorney-client relationship.

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