Homeowners do not think about the potential legal issues of owning a dog until it is too late and their dog attacks or bites someone. Assuming their particular dog breed is covered under their policy, what sort of claims should they be concerned about and what are the defenses? Under Arizona law, there are two theories of liability for a dog bite claim: strict liability and common law negligence.
Common Law Negligence
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 bite. Perazzo v. Ortega, 32 Ariz. 154, 156, 256 P. 503, 504, (App. 1927.) There are two necessary factors in this regard: 1) 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 Perazzo, 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.” 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. Good v. City of Glendale, 150 Ariz. 218, 221, (App. 1986.)
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.” Id. 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.
Strict Liability Claims
Strict liability is a significantly more rigid cause of action. Arizona Revised Statute (A.R.S.) §11-1025 prescribes that a dog owner is strictly liable for damages when their dog “bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog.” This is true “regardless of the former viciousness of the dog or the owner’s knowledge of its viciousness.”
Pursuant to the statute, if a dog bites someone who is either in a public place (i.e. a park, sidewalk, or street) or lawfully present on private property (i.e. anyone who is not a trespasser), the owner of that dog is liable – regardless of whether that dog was on a leash, behind a fence, or even on its own property. Further, under a strict liability cause of action it is irrelevant that the dog had never bitten anyone before nor demonstrated aggressive behavior prior to the incident. Unlike common law negligence as discussed below, the owner of the dog will be liable for injuries even if the owner showed the utmost care to prevent harm. James v. Cox, 130 Ariz. 152, 153 (App. 1981.) The “one free bite” rule does not exist, and you are liable regardless of the dog’s history of biting.
Unless the person was trespassing at the time of the incident, the only defense to a strict liability dog bite clam is “reasonable provocation.” This defense asserts that the victim is responsible for their own damages because he or she took some action that “a reasonable person would expect…is likely to provoke a dog.” The term “provoke” is not defined in the statute. However, the Arizona Court of Appeals has held that provocation is defined as an act or process of provoking, stimulation, or incitement. Toney v. Bouthiller, 129 Ariz. 402, quoting Nelson v. Lewis, 36 Ill.App.3d 130 (1976.) Whether or not the actions of the victim constitute provocation is a question the majority of courts will leave up to the discretion of a jury. In order to maintain a strict liability claim, it must be brought within a year. If not, common law negligence is still available – note both strict liability and common law negligence can be claimed, if available.
Availability of Punitive Damages
Dog bite claims are particularly susceptible to punitive damage claims as well. On a broad scale, Arizona law restricts punitive damages those cases in which (1) the defendant's conduct is “aggravated and outrageous,” and (2) the wrongful conduct was guided by “an evil mind.” Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 331 (1986.) When a Plaintiff is asserting a claim for punitive damages against a Defendant in a civil lawsuit, “a plaintiff must always prove ‘outwardly aggravated, outrageous, malicious, or fraudulent conduct” and a plaintiff must also prove, as a second element, that the defendant's wrongful conduct was guided by evil motives. Rawlings v. Apodaca, 151 Ariz. 149, 163 (1986.)
As applied to dog bite claims, punitive damages may be available where the owner either intended to have the dog bite or was reckless and careless in training and/or handling the dog. For example, where a dog is trained to attack or where a dog was known to be vicious, but the owner kept the dog anyway. Jones v. Manhart, 120 Ariz. 338 (1978.) Either way, a jury would still need to find clear and convincing evidence of an “evil hand” guided by “an evil mind.”
The attorneys at Thomas Rubin & Kelley PC are experienced in investigating and defending dog bite claims. Please feel free to contact us if you need assistance with any of your Arizona claims. Brian Rubin (brubin@trkfirm.com) or Michael Kelley (mkelley@trkfirm.com).