Theories of Recovery In Texas Dog Bite Law

 

Dog bite law has evolved in Texas into theories of both strict liability and negligence.  Additionally, laws have been evolved at the State, County and City levels to place higher duties on owners of dangerous dogs.

Common Law Strict Liability

            In Texas, the case that set the standard for common law strict liability is Marshall v. Ranne, 511 S.W.2d 255 (Tex.1974) wherein the Texas Supreme Court adopted the Restatement of Torts 509 (1938) as follows:  "a possessor of a domestic animal which has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm caused thereby to others, except trespassers on his land, although he has exercised the utmost care to prevent it from doing the harm."  See page 258.  That case further opined that contributory negligence is not a defense to strict liability id page 259.  As a result, "In a strict liability case, the plaintiff must satisfy a 3-part test:  (1) the animal is of a vicious dangerous, or mischievous nature; (2) the owner has actual or constructive knowledge of such characteristics; and (3) the injury or damage resulted from such propensities of which the owner had knowledge."  Petry v. Gasca, 1994 WL 132772 (Tex.App--Hous.[14^th Dist.].

            Furthermore, "whether a dog has a vicious nature, and whether the owner is aware of that nature is a question of fact."  Petry v. Gasca, 1994 WL 1327721 Tex.App--Houston[14thDist] at page 2.   A jury question based upon the above principal is set forth in Powers v. Palacios, 794 S.W.2d 493--Corpus Christi 1990 as follows:

"Question:  Did Defendant have reason to know that [the dog] had dangerous propensities abnormal to its class?"

 

            They furthermore set forth the definition of the dog's class as follows:

 

"Domestic animals:  such as are habituated to live in or about the habitations of men or such as contribute to the support of a family..."

 

            Any attempted attack on a human subjects the owner to strict liability the next time it attacks someone.  In City of Houston v. Jenkins, 363 S.W.3d 808 (Tex.App--Houston, [14thDist] 2012, the court cited a case as follows: "...the fact that a dog has attempted to attack human being...is sufficient to bring its possessor within the rule stated in this section."

 

Texas Common Law Negligence

 

            Texas common law negligence is similar to strict liability as it pertains to licensees.  It has been defined in terms of negligent handling of the dog.  "The elements of a claim for common-law negligent handling of an animal are (1) the defendant was the owner or possessor of an animal, (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others, (3) the defendant breached that duty, and (4) the defendant's breach proximately caused the plaintiff's injury."  Williams v. Sable, 2011 WL 238388 (Tex.App--Hous.[14 Dist.] (Not Reported) at page 3.  In order to establish the duty element, you must establish that the owner was aware of a dangerous propensity of the animal and thus had a duty to act to prevent harm.  See Petry v. Gosca, 1994 WL 132772 (Tex.App--Hous. [14thDist]). ("This knowledge of the dangerous propensity of the animal is a prerequisite to imposed liability on the owner of an animal under either the strict liability or negligence theories.") 

 

The significant difference between common law negligence and common law strict liability is that 1) there is no defense of contributory negligence to strict liability 2) strict liability requires that the propensities be a "producing cause" not a "proximate cause" of the injuries.  See Owens v. Coury, 614 S.W.2d 926, 928 footnote 1 (Tex.App--Amarillo, 1981, no writ) and 2) common law negligence requires actual knowledge of the dangerous propensities for licensees whereas strict liability does not.  See Mashall v. Ranne, 511 S.W.2d 255 (Tex. 1974)

 

Statutory Negligence Per Se

 

            In addition to common law strict liability, a statutory cause of action for negligence per se exists where the dog is a "dangerous dog" as defined by the Harris County Animal Control Regulations.  This regulation applies to all unincorporated areas including Spring, Texas where this incident occurred.  Harris County Animal Control gives the following relevant definitions:

            "Dangerous dog:  A dog that

 

(1)       makes an unprovoked attack on a person that causes bodily injury and occurs in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own; or

 

(2)       commits unprovoked acts in a place other than an enclosure in which the dog was being kept and that was reasonably certain to prevent the dog from leaving the enclosure on its own and those acts cause a person to reasonably believe that the dog will attack and cause bodily injury to that person.

 

Attack:                         Acts by an animal that cause a person bodily injury.

 

Bite.                             Any abrasion, scratch, puncture, tear or piercing of the skin that causes bleeding and is caused by or suspected of being caused by an animal.

 

Enclosure:                  A cage, crate, pen, corral, case, aquarium, building, or other place used solely for the primary housing of an animal or for the transportation of an animal.

 

Secure Enclosure:      A fenced area or a structure that is locked; is capable of preventing the entry of the general public; is capable of preventing the escape or release of the animal confined therein; and is marked as containing a dangerous dog or a dangerous or restricted animal is required by these Regulations.

 

Owner:                        Any person that harbors, shelters, keeps, controls, manages, possesses, or has part interest in any dog or cat.  It is a rebuttable presumption that the occupant of any premises on which a dog or cat remains for a period of (7) days or to which it customarily returns daily for a period of seven (7) days is harboring, sheltering, or keeping the aforementioned dog or cat, within this definition.  If a minor owns a dog or cat or other animal subject to the provisions of these Regulations, his or her parent, or guardian is deemed the custodian of such dog or cat or other animal."[1]

 

            When a dog meets the definition of a "dangerous dog" under the statute, additional legal duties arise including but not limited to the duty to muzzle the dog anytime it is outside of a secure enclosure.  See Section 8.C.(5).  It is important to note here that no judicial determination is required for this.  In State v. Taylor, 332 S.W.3d 772 (Tex.App--Texarkana, 2011) the court interpreted the Texas counterpart to the statute which is word-for-word identical in its definition of dangerous dog.  That court opined as follows, "A person learns he or she has a dangerous dog in only three ways: (1) the owner knows of an attack by the dog; (2) the owner receives notice that a justice court, county court, or municipal court has found that the dog is a dangerous dog; or (3) the owner is informed by animal control authority that the dog is a dangerous dog."  See Page 726, FN 4.  Under the first prong, a dog owner is charged with knowledge that he owns a dangerous dog if he knows the dog has ever bit anyone.

 

Conclusion

 

When you pursue a claim against a negligent owner for a dog attack, your attorney must make a decision which causes of action to pursue.  There are advantages to both, so your attorney will need to decide which causes of action are best suited to your case.