by Brit A. Simon
As mentioned in Part I of this series, under Arizona law, there are two theories of liability for a dog bite claim: strict liability and common law negligence. Each of these theories has distinct elements and separate defenses. However, it is important to note that the statute which gives rise to strict liability for dog bites does not codify or replace common law liability[1]. It is therefore possible for a Plaintiff to proceed with both theories of liability in one action.
A dog’s owner is only liable for common law negligence if the owner knew or had reason to know of their dog’s vicious propensities prior to the bite1. There are two necessary factors in this regard: 1) that the dog had vicious propensities; and 2) that the owner had knowledge of said vicious propensities. Both factors must be proven to succeed on a common law negligence claim.
Arizona courts will determine whether a dog had “vicious propensities” on a case-by-case basis. In one case, it was held that “[w]here one keeps on his premises a dog which has attacked or bitten a considerable number of persons, and is notoriously cross and vicious, it may be presumed that the owner has some knowledge of this fact.”[2] With respect to the owner’s knowledge of the dog’s vicious propensities, courts have held that said knowledge need not be actual – meaning it can be imputed upon an owner if a joint owner, employee, spouse, or similarly situated person was aware of the animal’s vicious propensities, and thus it can be implied that the owner himself had such knowledge as well.2
Arizona also permits claims based on the common law theory of negligence per se, which prescribes that “[a] person who violates a statute enacted for the protection and safety of the public is guilty of negligence per se.”[3] There are numerous laws, statutes, and ordinances which specify certain guidelines as to the duties of a dog owner. For example, most jurisdictions have laws which prohibit a dog from being “at large,” meaning the dog is not sufficiently and legally fenced in, leashed, or contained. Thus, if a dog owner is found to have violated such a statute by allowing their dog to be “at large,” and the dog causes harm to someone, the owner can be held liable under a theory of negligence per se. It is also important to note that this cause of action is not exclusively limited to dog bite incidents but can be applied in any case wherein a dog “at large” causes any sort of harm or damage, including property damage.
Thomas Rubin & Kelley is happy to assist you in the defense of all claims. If you have any questions, please do not hesitate to contact Brian Rubin (602-604-7509 / brubin@trkfirm.com) or Michael Kelley (602-604-7505 / mkelley@trkfirm.com) for more details.
[1] Murdock v. Balle, 144 Ariz. 136, 696 P.2d 230 (Ct. App. 1985)
[2] Perazzo v. Ortega, 32 Ariz. 154, 156, 256 P. 503, 504, (Ct. App. 1927)
[3] Good v. City of Glendale, 150 Ariz. 218, 221, 722 P.2d 386, 389 (App. 1986)