Dogs come in all sizes, from the tiny Chihuahua to the gargantuan Mastiff. On the whole, dogs are lovable and peaceful creatures. They mean no harm and seldom cause it. Unfortunately, non-aggressive dogs sometimes unintentionally trip or knock people down, resulting in injuries.
Non-aggressive dog accidents are responsible for thousands of trips each year to emergency rooms around the country. The amount of medical bills, lost time from work, and related pain and suffering is staggering. If you or a family member is hurt by a dog, whether intentionally or not, you’re probably wondering what legal rights you have.
In this section, we’ll review:
- Common non-aggressive dog accidents
- Dog owner negligence and liability
- Proving your personal injury claim
- Dealing with the insurance company
- The role of attorneys
Common Dog Accidents
While bites and maulings are the most common form of injuries caused by dogs, there are additional accidents responsible for thousands of injuries each year. They include knock downs, tripping and falling over dogs, and even head butts. Large dogs can weigh more than a hundred pounds. In an excitable state, they can easily jump up on us and knock us down. Groups of dogs can quickly overwhelm us, causing scratches, cuts, and abrasions (scrapes).
The mere force of a large dog’s body can be enough to push us back and over. And smaller dogs can wind between our legs and trip us up, causing us to fall on hard surfaces. Small children and the elderly are generally more susceptible to these types of non-aggressive dog accidents.
Culpability and Negligence
The definition of culpability is “…deserving of blame or being wrong, improper, or injurious.” When it comes to personal injury claims, a culpable dog owner is one whose failure to control his dog results in injuries to others. Failing to control a dog is an act of negligence, even before the dog causes an injury. That is, the mere failure of the dog owner to control his dog makes him liable.
Examples of negligent dog owner behavior include:
- Failure to leash a dog
- Failure to control a dog while on its leash
- Failure to keep a dog fenced in
- Failure to contain a dog to the owner’s home or car
Negligence makes a dog owner responsible, or liable, for the injured victim’s damages. Damages include the victim’s medical bills, out-of-pocket expenses for medications, crutches, bandages, etc., lost wages, and the victim’s pain and suffering (emotional distress). Complicating the issues of negligence and liability are the so called one-bite and strict liability laws.
“One Bite” Laws
In states with a one-bite rule, if a dog never previously injured a person nor exhibited any signs of violent behavior, the dog’s owner won’t necessarily be liable for the victim’s injuries.
This means a person whose dog has no history of injuring others might escape liability the first time his dog injures someone, whether purposely or by accident. There’s a caveat. Even in a one-bite state, if the victim can show his injuries were caused by the dog owner’s negligence, the one-bite rule is set aside, and the victim is eligible to seek and recover compensation for his damages.
One-bite states include: Alaska, Arkansas, Colorado, Georgia, Idaho, Kansas, Maryland, Mississippi, Missouri, Nevada, New Mexico, North Carolina, North Dakota, Oregon, South Dakota, Texas, Vermont, Virginia, and Wyoming.
Applying the one-bite rule…
Susan lived in Wyoming, a one-bite state. It was early morning and she decided to take her collie, Lad, out for a walk in the neighborhood. She had the collie on a leash. Lad never before bit or caused an accidental injury to another person.
While Susan was walking Lad, her neighbor Louise came out to say hello. As Louise approached Susan, the dog jumped up and knocked her to the ground. As a result of the fall, Louise broke her ankle. She filed a claim with Susan’s homeowners insurance company, but they denied it.
The company based its denial on the one-bite rule. Susan’s collie had no history of violence, and because the collie was on its leash, there were no signs of negligence. Louise then filed a lawsuit, but the court agreed with the insurance company and dismissed her case.
In Louise’s case, if we were to change the facts just a bit, the outcome would be entirely different. Let’s say Susan took Lad for a walk but didn’t put him on a leash. In this case, the failure to leash the collie is probably sufficient evidence to prove Susan negligent. This would be an exception to Wyoming’s one-bite rule. The insurance company would then likely pay Louise’s injury claim.
Strict Liability Laws
Strict liability states do not follow the one-bite rule. In a strict liability state, a dog owner can be held liable for a victim’s damages even if the dog has no history of injuring anyone, nor showed any tendency toward violence. Even if the owner properly leashes or otherwise controls the dog, in a strict liability state the dog owner is still liable.
Applying strict liability…
John lived in New Jersey, a strict liability state. John kept his German Shepherd fenced in on his property. The German Shepherd was a peaceable dog and in the five years since its birth, it never injured anyone nor showed any tendency toward violence. John was having a barbecue and invited some neighbors. During a touch football game, John threw a pass to his neighbor Alex.
Alex didn’t realize it, but as he jumped up to catch the pass, John’s dog positioned itself right underneath him. When Alex came down, the dog tripped him up. Alex wrenched his knee and tore several ligaments. He filed a claim against John’s homeowners insurance for his injuries. In his claim, he alleged under New Jersey’s strict liability law he should receive compensation, regardless of whether John’s failure to leash his dog constituted negligence.
John’s insurance company grudgingly paid Alex’s claim, admitting under strict liability that John was liable, even if this was the first time his dog caused injury to anyone.
Several exceptions apply to dog accident claims. Under these exceptions, whether negligent or not, a dog owner may escape liability for injuries his dog causes. The exceptions are when:
- The victim was trespassing
- The victim was purposely provoking the dog
- The dog was a police, airport security, or military dog
- The victim was a professional who deals with dogs, such as a veterinarian, dog trainer, etc.
Gathering Evidence to Support Your Claim
Photographs and video
Photographic and video footage can provide graphic evidence of negligence. An insurance company is hard-pressed to deny the insured’s negligence when presented with clear and convincing photographic or video proof.
Unless you get lucky, it’s impossible to video an accident as it happens. In some cases though, you can photograph or video the accident’s aftereffects. Showing video of a loose dog, a hole in the dog owner’s fence, or other evidence can prove the dog owner behaved negligently.
When taking photographs or video, make sure you engage the date and time stamp function on your digital camera or cell phone. Look around. Depending upon where your injury took place, a local store, school, or other facility may have surveillance cameras pointed toward the area where the accident happened. If you’re lucky, video footage may have captured the whole thing.
Witness statements and incident reports
Witness statements are invaluable, especially when they’re from independent Good Samaritans with no personal or financial interest in your claim. There’s no need for notarized or sworn statements. That’s only necessary if someone were to later dispute the authenticity of a signature, which seldom happens.
Get your witnesses’ statements on any paper you can find. Ask them to write down in detail exactly what they saw, along with their names and contact information. The more witnesses you have verifying the dog owner’s negligence, the stronger your claim.
Medical records, bills, etc.
Treatment records, medical bills, receipts for out-of-pocket expenses, and verification of lost wages are essential components of your personal injury claim. The insurance company needs them as a basis for calculating any compensation they eventually pay.
Make sure you attach copies of doctors’ notes, especially those stating your injury diagnosis and the prognosis for recovery. It’s important the diagnosis include not only the type of injury, but a description of its cause. The prognosis helps the insurance company determine how many future work days you may miss, and the duration of your probable pain and suffering.
Dealing With the Insurance Company
Dealing with insurance companies doesn’t have to be a hostile or adversarial process. Although they don’t like to give away money, if your claim is well-presented they’ll cooperate. The insurance company may want to take your recorded statement and speak with your witnesses. That’s normal. When giving your statement, just stick to the facts. Don’t mention anything that would imply you contributed to your own injury.
In some states, even the smallest amount of contribution to your own injury is enough to legally deny your clam. In others, the courts compare your contribution to your injury with the dog owner’s negligence, and you’ll receive an award reduced by your percentage of fault.
Tell the truth but stick to the facts. Giving your opinion or complaining will only make you look unprofessional. The more professional you are, the higher the likelihood the insurance adjuster will take your claim seriously.
Make sure you provide to the insurance company your photographic and video evidence, witness statements, and all other proof of damages. Remember, your damages consist of the costs of your medical bills, out-of-pocket expenses, lost wages, and your pain and suffering.
The Role of Attorneys
If your injuries are the less serious soft tissue type, you can probably handle your own claim. Soft tissue injuries include sprains and strains, minor cuts, abrasions (scrapes), and the like. However, if your injuries are the more serious hard injuries, you need an attorney. Hard injuries include head trauma, broken bones, deep gashes, burns, and so forth. With hard injuries, there’s just too much at stake.
Your attorney can take the depositions (recorded, sworn statements) of store managers, employees, adverse witnesses, and others with knowledge of your claim. She can issue a subpoena duces tecum (Latin for “produce the evidence”) for company records, surveillance footage, and other evidence you otherwise couldn’t secure on your own.
What’s most important is that attorneys can file a lawsuit, if necessary. The mere possibility of a lawsuit is often enough provocation for an insurance company to settle.
Because personal injury attorneys don’t charge for initial office visits, you can see several before deciding which one you think will best represent your interests. And personal injury attorneys don’t charge any fees in advance. You only have to pay legal fees if your attorney successfully settles your claim or wins it at trial.
Postman Knocked Down
In this case a large Labrador jumped up on a postman, knocking him to the ground. The mail carrier suffered a broken tailbone which caused excruciating pain.
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