The Doggone “One Free Bite” Fallacy
As noted by a trial judge in the District of Columbia:
The ancient rule is that, in a case of a “first offense,” a prerequisite to any such recovery must include proof that the owner of the offending canine knew, or had reason to know, of the dog’s “vicious propensities.” This legal principle (often encapsulated in the overly-simplified bromide that, “Every dog is entitled to one bite.”) is so common in the case law throughout the nation that it has become—well, dogma.
Pederson v. Wirth, 2003 D.C. Super. LEXIS 33, at *8 (May 21, 2003).
Indeed, some Virginia jurists have taken that leash and walked this dogma right into the kennel of Virginia case law. See, e.g., Crocker-Sanford v. Landrum, 40 Va. Cir. 282, 284 (Va. Beach 1996) (asserting that “a potential defendant is not on notice unless an animal has previously bitten or attacked another person”)./p>
But I have a bone to pick with the “one free bite rule,” which must be tamed before it breeds any further progeny into Virginia jurisprudence. This fallacious “rule” must heel to well-established fundamental principles of law and common sense.
Under Virginia law, a dog owner has “the common law duty of exercising ordinary care to protect other persons from injuries that might be inflicted by his dog and [is] subject to civil liability for breach of that duty.” Butler v. Frieden, 208 Va. 352, 355, 158 S.E.2d 121, 123 (1967).
“Reasonable care” or “ordinary care” is a relative term, and varies with the nature and character of the situation to which it is applied. The amount or degree of diligence and caution which is necessary to constitute reasonable or ordinary care depends upon the circumstances and the particular surroundings of each specific case. The test is that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury to another.
Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808 1957) (internal quotation marks omitted).
In order for negligence to be actionable, a defendant “need not have anticipated or foreseen the precise injury sustained, but it is sufficient if an ordinarily careful and prudent person ought, under the same or similar circumstances, to have anticipated that an injury might probably result from the negligent acts.” New Bay Shore Corp. v. Lewis, 193 Va. 400, 409, 69 S.E.2d 320, 326 (1952); accord Panousos v. Allen, 245 Va. 60, 66, 425 S.E.2d 496, 499-500 (1993). “The sufficiency of the notice is a question of what is sufficient to put a reasonable and prudent man on his guard. It is not necessary that it be notice of mischief actually committed; it is the propensity to commit the mischief that constitutes the danger.” Perlin, 198 Va. at 865, 96 S.E.2d at 809 (internal quotation marks and citation omitted) (emphasis added).
As a result, the fundamental question in any personal injury claim for negligence is not whether the specific event which caused the injury had occurred before but instead is whether a rational jury could conclude under all the circumstances shown at trial that the defendant should have anticipated that any injury might result from the defendant’s conduct. Thus, in the context of a dog bite, the question is not whether the dog has actually bitten a person before but instead is whether a rational jury could conclude under all the circumstances shown at trial that the defendant should have anticipated that the dog might probably cause injury to a person due to the defendant’s conduct (i.e., allowing the dog to run loose, failure to have the dog on a leash, failure to confine the dog, failure to warn, etc.).
Common sense also indicates that proof of a prior bite is not always necessary. For example, a dog owner who knows his dog has repeatedly snarled and lunged at strangers, and/or previously attempted to bite strangers, and yet fails to take any action to restrain the dog when opening the front door for a visitor obviously could be found to have failed to use reasonable care for the safety of the visitor whom the dog bites.
And in some cases, the injury will not have been caused by a bite at all but will instead have been caused by other types of dangerous conduct. For instance, an owner who knows that his 60-pound dog boisterously and happily jumps onto any visitor could be found to have failed to use reasonable care when the unrestrained dog causes injury by knocking a visitor down. Similarly, an owner who knows that his unrestrained dog frequently gets into fights with other dogs could be found to have failed to use reasonable care when the unrestrained dog knocks down a neighbor who is walking their own dog on a leash.
Statutes and local ordinances define what constitutes a “dangerous” or “vicious” dog. See Va. Code §§ 3.2-6540, et seq.; Albemarle County Code §§ 4-210, et seq. Simply stated, these terms are generally defined to apply to those dogs who have inflicted serious injury upon another person or animal. See Va. Code § 3.2-6540(H) (dangerous); Va. Code § 3.2-6540.1(A) (vicious); accord Albemarle County Code § 4-210 (dangerous); Albemarle County Code § 4-221 (vicious). But there is nothing in these provisions that indicates that proof of prior dangerous or vicious incidents is required to establish negligence.
Rather, as summarized by Judge Hughes in Richmond:
When a dog injures another person or animal, this places the dog owner on notice of their dog’s dangerous or vicious propensities, imbuing the owner with a heightened standard of care with respect to their dog’s actions in the future. This is sometimes colloquially referred to as the “one bite” rule. When the dog owner is not on notice of the dog’s propensities, Virginia case law indicates that “the dog owner . . . [has] the common law duty of exercising ordinary care to protect persons from injuries that might be inflicted by his dog and [can be] subject to civil liability for breach of that duty.” Butler v. Frieden, 208 Va. 352, 355, 158 S.E.2d 121 (1967).
Smith v. Simmons, 89 Va. Cir. 213, 214 (City of Richmond 2014).
Simply stated, if a particular dog is deemed “dangerous” or “vicious” pursuant to a statute or ordinance then the owner owes a “heightened” duty of care to others. But even when this “heightened” duty is not applicable, the owner nevertheless owes a duty of exercising ordinary care.
As explained by the Supreme Court of Virginia:
. . . . The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and in so far as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries which are reasonably to be anticipated from them.
The sufficiency of the notice is a question of what is sufficient to put a reasonable and prudent man on his guard. It is not necessary that it be notice of mischief actually committed; it is the propensity to commit the mischief that constitutes the danger. And if the mischief is of a sort that animals of the kind are likely to commit at a certain season of the year—as in the case of stallions—the owner should anticipate and guard against it without any special notice or warning.
Perlin, 198 Va. at 865, 96 S.E.2d at 809 (emphasis added) (internal quotation marks and citations omitted).
Accordingly, the dog owner may be on notice of the dog’s dangerous propensity even if the dog has not previously bitten or attacked someone. As one trial court explained: It would appear that the dog need not be actually of a vicious temperament to satisfy this qualification if his habits are such as to raise in an ordinarily prudent person the apprehension that the dog might injure persons other than his master. An extremely nervous and high-strung animal might pose as much of a threat to one coming on the premises of its owner as would a dog which was of a vicious nature. One indicia suggesting the possibility of a vicious nature is often the particular type dog involved.1
A German police dog used by the owner as a watch dog has been held an example of this type of dog.
Burton v. Walmsley, 9 Va. Cir. 309, 1967 Va. Cir. LEXIS 8, at *2-3 (City of Richmond 1967).
Accordingly, the “one bite rule” is not actually a rule of law and it does not mean that a dog owner gets a proverbial “free pass” the first time their dog hurts someone. Rather, the “one bite rule” only means that after a first bite incident the dog owner is necessarily on specific, actual notice of the dog’s dangerous propensity for purposes of civil liability in future incidents. But even when there has not yet been a bite or attack, the owner of the dog may nonetheless be on notice that the dog has dangerous general propensities or behaviors which may cause injury if the dog is not restrained. Rather, if the owner knew or should have known that the dog had exhibited aggressive, anxious and/or protective behavior such as snarling, lunging, or jumping at others a jury could under the proper circumstances find that the owner had notice of the animal’s dangerous propensity.
Although there is currently a dearth of on-point Virginia case law upon which I can put my paws, courts in other jurisdictions have explicitly noted the above-summarized distinction in the common law. See, e.g., Domm v. Hollenbeck, 259 Ill. 382, 387, 102 N.E. 782, 784 (1913) (the evidence presented a jury question where the only testimony as to bad propensities was that the dog had, on a previous occasion bared his teeth at a person and on another occasion had “put his paws on the glass and jumped up against the glass in a manner which made the witness apprehensive that the dog might get out and bite him”) (cited with approval in Burton, at *4).
As succinctly summarized by a trial court in New York:
The oft-repeated aphorism “every dog gets a free bite” is not true. Though a dog may never have bitten anyone, still, if its owner knew it to be vicious, then even its first bite is not free. The reason is that it is the knowledge of the dog’s propensity to bite, not just the proof of it, that gives rise to the owner’s duty to take precautions, so that a foreseeable injury can be avoided.
O’Brien v. Amman, 21 Misc. 3d 1118(A), at *2, 873 N.Y.S.2d 513, 513 (Sup. Ct. 2008) (unpublished) (emphasis added) (citing, inter alia, Collier v. Zambito, 1 N.Y.3d 444, 447, 807 N.E.2d 254, 256, 775 N.Y.S.2d 205, 207 (2004) (“[A] triable issue of fact as to knowledge of a dog’s vicious propensities might be raised—even in the absence of proof that the dog had actually bitten someone—by evidence that it had been known to growl, snap or bare its teeth. . . . The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities”))
Last but not least, as noted by Professor Prosser in his well-known treatise on torts:
Notice that a dog has once bitten a man is ordinarily sufficient to establish scienter that he may do it again, but the often repeated statement that “every dog is entitled to one bite” is not and never has been the law. It is enough that the dog has manifested a vicious disposition, and a desire to attack or annoy people or other animals. Such knowledge may be inferred from … continued ownership of an animal whose tendencies are obvious, or from its reputation in the neighborhood.
Pederson, 2003 D.C. Super. LEXIS 33, at *9 (quoting William L. Prosser, Handbook of the Law of Torts § 76 pp. 501-02 (4th ed. 1971)).
Now that you are armed to the teeth with knowledge of dog-law, and can fight off the assertion of erroneous dogma on the subject, fetch yourself a winning case.
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1Although a dog cannot be deemed dangerous “[s]olely because it is a particular breed,” Va. Code § 3.2-6540(K)(1) (emphasis added), that does not mean that a dog’s breed is irrelevant to the analysis but, rather, breed may be “a” factor.
