This is a review of a dog bite case. The plaintiff in this case was severely bitten when she attempted to pet a dog in a cafe where she was dining. The cafe in question was well-known for its permissive attitude towards patron’s dogs, and it wasn’t unusual for dogs to be on the premises.
After several failed attempts to reach an agreement with both the owner of the dog and the owner of the cafe, the woman filed a lawsuit. The suit sought to recover the cost of the woman’s medical bills as well as an award for her pain and suffering.
Statement of Facts…
On the morning of December 3rd, 2010, at about 10:00 a.m., Nikki Brooks was waiting for her check after finishing her meal at the Waterman Cafe. While she was waiting, another patron passed by with his dog. The cafe had a generally laid-back atmosphere, and patrons often brought their dogs in with them. In this case the patron had brought in a 110-pound Weimaraner which he had securely leashed.
As the dog passed, Brooks leaned over to pet it. As she did, the dog reared its head back and bit Brooks in her face. She suffered serious lacerations, contusions and bruises to the front of her face and her left ear.
Paramedics were called and Brooks was rushed to the local hospital. Brooks required nearly thirty stiches to her face and ear, and she remained in the hospital for two weeks. Once released, she required another three weeks of recovery time at home.
After recovering, Brooks made every reasonable attempt to negotiate an out of court settlement to this dog bite case with the dog’s owner and the cafe. The dog’s owner had few assets. Believing he was about to be sued, he filed for bankruptcy. The cafe’s insurance company and the woman were unable to agree on a settlement amount. The woman retained a personal injury attorney and filed a lawsuit against the cafe.
In her lawsuit, Nikki Brooks contended that the cafe’s owner, the Thauberger Corporation, had failed to protect her from a vicious dog attack and that Thauberger breached the “standard of reasonable care” which should have been available to all its patrons.
She contended this standard of care was breached when Thauberger permitted dogs to enter the cafe, and this breach constituted negligence.
Brooks’s lawsuit admitted that she was aware patrons brought their dogs to Thauberger’s cafe, but, it stated, the dogs were normally leashed on the railing outside of the eating area.
Brooks through her suit sought the following damages and resultant compensation:
- Medical bills
- Out-of-pocket expenses
- Lost wages
- Pain and suffering
Brook’s medical bills, referred to as ‘Hard Costs’ amounted to $45,500. She was an hourly worker and her lost wages amounted to $3,500. Her out of pocket expenses for medications, ointments and creams amounted to $500. Her lawsuit asked for actual damages in the amount of $49,500, and $250,000 for pain and suffering.
The defendant Thauberger swiftly filed its answer in this dog bite case. In its answer Thauberger conceded it did not have posted anywhere in their cafe a notice which prohibited dogs from coming past the railing and into the eating area.
However, Thauberger stated it had been doing business at that same location for 12 years. During that time it was common knowledge to its patrons dogs were to be leashed outside the railing, but that sometimes patrons did bring their dogs into the eating area.
Thauberger produced and entered into evidence credit card receipts showing Brooks had eaten at their cafe at least 16 times during the preceding 12 month period.
Thauberger contended Brooks was therefore aware dogs often came inside the railing into the eating area. Thauberger was unable to locate any complaints Brooks made about dogs being anywhere on the cafe’s premises.
Thauberger further contended if Brooks felt any apprehension or fear about dogs being in close proximity to her or other patrons, she could have either complained, or more importantly decided not to eat at the cafe.
Thauberger went on to state Brooks, by continuing to return, “assumed the risk”…
“Assuming the risk” or the “assumption of risk” is a legal concept that often comes up in dog bite cases and other personal injury lawsuits.
If a person “assumes the risk” then they have decided on their own to engage in an action they know is risky or dangerous. If they are later injured or in some way harmed during the activity, they cannot hold anyone else liable for their fate but themselves.
In this case, Thauberger claimed that Brooks knew the risks of being around the patrons’ dogs, and she chose to continue doing so any way.
Thauberger tried to further bolster their defense by stating in the 12 years it had been doing business at that location no one filed a report complaining of a dog attack.
Thauberger stated that without previous complaints there was no “foreseeable harm,” and therefore didn’t find it necessary to take affirmative precautions to prohibit dogs from entering into the cafe’s eating area.
After listening to all of the evidence presented in this dog bite case, by the plaintiff Brooks and from the defendant Thauberger, and after listening to the final arguments of their attorneys, the Court found in favor of the plaintiff Brooks and against the defendant Thauberger. In rendering her verdict the Judge stated in part:
“Although the plaintiff may have known there were dogs which frequently went past the cafe’s front railing and into the eating area, and as such knew there existed some potential for danger, the plaintiff’s decision to continue eating at the cafe cannot be viewed as an assumption of the risk.
It would mean the owners of dangerous animals could not be held liable for the injuries their animals might inflict on the public.
We cannot accept a dog owner’s plea of not knowing his dog’s potential for aggressive behavior. There is no ‘one bite law’ before an owner is deemed to have notice of the assaultive tendencies of her dog. Relieving the dog owners of their responsibility for the actions of their animals, especially those dogs which are known to have the potential to inflict serious bodily injury or death, would be wholly improper.
Allowing those dog owners to escape responsibility would have a ‘chilling effect’ on parents of children, the elderly, and other members of the public who would merely deign to pet a dog.”
The Court awards the plaintiff the amount of $49,500 for her actual damages, and $100,000 for pain and suffering.
Dog bite cases like this one remind us that being lulled into a state of complacency can sometimes result in serious bodily injury. Although paranoia is not the correct response to the potential of near danger, a healthy vigilance is wholly appropriate.
One cannot assume there is consistent safety in a public place. While the owners of public establishments must always be on guard for the “foreseeable harm” to its patrons, so must the patron be ever-vigilant of the potential of harm to themselves as well.
If one knowingly places herself in an environment she knows to be dangerous, and after being injured seeks compensation from the entity she believes responsible for the dangerous environment, she may ultimately be denied that compensation.
By voluntarily placing herself in danger she often “assumes the risk” attendant to the environment.
*This case example is for educational purposes only. It is based on actual events although names have been changed to protect those involved. Any resemblance to real persons or entities is purely coincidental.
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