by Brit A. Simon
Recent statistics show that nearly 50% of homeowners in Arizona own a dog. [1] When you adopt a furry friend, it is, of course, assumed that you will be responsible for feeding, walking, and taking care of your pet. Most people, however, do not consider the liabilities associated with dog ownership before adopting a dog, the most daunting of which is: What if my dog bites someone?
Under Arizona law, there are two theories of liability for a dog bite claim: strict liability and common law negligence (the second of which will be discussed in Part II of this series). 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. This is a common misconception amongst the public, as there is an old wives’ tale (partially rooted in historical laws of other states) that there is a “one free bite” rule, meaning you are not responsible for the first time the dog bites someone. It is important to understand that under Arizona law, there is no “one free bite” rule, 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 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. [2] 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. When a policyholder presents a claim for coverage following a dog bite incident, it is important to aggressively and thoroughly investigate the claim as soon as possible to determine whether any defenses to strict liability exist under Arizona law.
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] https://worldpopulationreview.com/state-rankings/pet-ownership-statistics-by-state
[2] Toney v. Bouthillier, 129 Ariz. 402, 631 P.2d 557, quoting Nelson v. Lewis, 36 III.App.3d 130, 344 N.E.2d 268 (1976).