Defending Dog Bite Claims: It's a Ruff Day

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.

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. 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. Courts have held that knowledge of viciousness need not be actual – 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.

Arizona also permits claims based on common law negligence per se, which applies when someone violates a statute enacted for public protection. Most jurisdictions have laws prohibiting dogs from being "at large," meaning not sufficiently fenced in, leashed, or contained. If a dog owner violates such a statute and the dog causes harm, the owner can be held liable under negligence per se.

Strict liability is a significantly more rigid cause of action. Arizona Revised Statute §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 applies "regardless of the former viciousness of the dog or the owner's knowledge of its viciousness."

Under strict liability, if a dog bites someone in a public place or lawfully present on private property, the owner is liable regardless of whether the dog was leashed, behind a fence, or on its own property. It is irrelevant whether the dog had never bitten anyone before or demonstrated aggressive behavior. The owner will be liable even if showing utmost care to prevent harm. The "one free bite" rule does not exist.

Unless the person was trespassing, the only defense to a strict liability claim is "reasonable provocation." This defense asserts that the victim is responsible for their own damages because they took action that "a reasonable person would expect…is likely to provoke a dog." Whether actions constitute provocation is typically a jury question. Strict liability claims must be brought within one year; after that, common law negligence remains available.

Dog bite claims are particularly susceptible to punitive damage claims. Arizona law restricts punitive damages to cases in which the defendant's conduct is "aggravated and outrageous" and was guided by "an evil mind." As applied to dog bite cases, punitive damages may be available where the owner intended the dog to bite or was reckless in training and handling. A jury must find clear and convincing evidence of wrongful conduct guided by evil intent.

The attorneys at Thomas Rubin & Kelley PC are experienced in investigating and defending dog bite claims.