A Man's Best Friend Can Be Aggressive... Some Don't Let Go

Liability Issues for Texas Dog Owners

 

As of 2014, Texas was ranked seventh among the fifty states in the number of dog bite lawsuits, with 621 dog bite cases that year. The average cost of a dog bite claim in Texas in 2014 was $16,205.[1] In order to avoid exposing themselves to this sort of liability, dog owners should educate themselves as to what scenarios are most likely to result in dog bites, and monitor those more closely. For instance, around 42% of dog bites happen to children under the age of fifteen, with children between the ages of five and nine being most at risk. Also, male children are more likely to be bit. For working-age individuals, 7.9% of bites occurred while completing work-related activities, such as delivering pizzas or doing home repair work.[2]

In Texas, there are two theories an injured party is allowed to argue in a dog bite case: strict liability and negligence. The strict liability rule is fairly straightforward and is known as the “one bite” rule or the “first bite is free” rule. Basically, to prevail under this theory, the injured party must prove that the animal was vicious, which normally means it had bitten someone in the past, and that the owner knew of these vicious propensities.[3] Proving negligence is more complicated.

For negligence purposes, a dog owner is not liable if their dog, which has no history of biting, bites a “licensee” while the licensee is on the owner’s property. For this to make sense, one must understand the difference between “licensee” and “invitee.” The primary factor in distinguishing between licensees and invitees is whether the premises are open to the public. If the property is open to the public, persons on the property are normally characterized as invitees. This means that if a local gun shop owner keeps his Doberman behind the counter and it bites a customer, he may very well be liable because customers are invitees. Unlike customers, social guests in private homes are treated as licensees, even if they are children or close relatives.[4] However, persons present at a private residence may be invitees if their purpose is not a social purpose. In other words, if you have a dog that always growls at the mailman or the gardener and you let this dog roam the yard, you may be exposing yourself to liability. However, if you invite your friends over to watch the Super Bowl and your pit bull bites one of them, you are not likely liable if your pit bull had never bitten anyone in the past.           

            There are three major takeaways from this article. First, if your dog has bit someone in the past and you know about the prior bite, you can be held strictly liable no matter where the second dog bite occurs. Second, if your dog has never bit anyone, you may still be liable under the theory of negligence if the dog bite occurs in a public place. Third, though a private residence is normally not considered a “public place,” it is deemed a public place if you are holding a garage sale, getting mail or pizza delivered, having your pipes fixed by a plumber, or having clients over to your home office.[5]

 



[1] When Dogs Bite, Home Insurers Pay Average $32,000, Ins. J. (May 15, 2015), http://www.insurancejournal.com/news/national/2015/05/15/368180.htm.

[2] Gilchrist J., Gotsch K., Annest J.L., Nonfatal dog bite-related injuries treated in hospital emergency departments – United States, 2001, Morbidity & Mortality Weekly Report 52(26): 605–10 (July 4, 2003), http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5226a1.htm.

[3] Villarreal v. Elizondo, 831 S.W.2d 474, 477 (Tex. App.—Corpus Christi 1992, no writ).

[4] Holt v. Fuller Cotton Oil Co., 175 S.W.2d 272, 274 (Tex. Civ. App.—Amarillo 1943, writ ref'd w.o.m.) (holding no special duty owed to minors); Bass v. Cummings, 415 S.W.2d 438 (Tex. Civ. App.—Amarillo 1967, writ ref'd n.r.e.) (holding no special duty owed to close relatives).

[5] See Corwin v. Arnett, 2002 Mich. App. LEXIS 1140, at *3–4 (Mich. Ct. App. July 30, 2002) (garage sales); Lehman v. Hug, 614 S.W.2d 732, 732–33 (Mo. Ct. App. 1981) (home office); Smith v. Monczunski, 2005 Mich. App. LEXIS 1848 (Mich. Ct. App. Aug. 4, 2005) (contractors).


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