This is a review of a dog bite injury claim. The plaintiff in this case was a father whose young son was attacked by a neighbor’s Rottweiler. During the incident, the neighbor had tried to control the dog, but the leash he was using broke when the animal lunged at the boy.
The father attempted to negotiate a settlement with the neighbor to recover some of the costs of the boy’s extensive medical treatments.
The neighbor, in turn, denied liability in the dog bite injury claim, saying that the leash he used was defective. The father responded by filing a lawsuit asking for damages and an award for the boy’s future medical bills, which were expected to be substantial.
Statement of Facts…
On the afternoon of January 11th, 2011, Kimberly Tanner was out walking his eight-month-old Rottweiler around his neighborhood. Tanner believed he had his dog securely leashed when he approached the yard of his neighbor Ken Mack.
In Mack’s yard was his 12-year-old son Dickey Mack. When Tanner got to within 50 feet of the younger Mack, the Rottweiler began to bark at the boy. As the dog barked, it also lunged towards the child. Tanner tried to pull his dog back, but its leash snapped, and instead the dog was set loose. Once free, Tanner’s Rottweiler proceeded to charge Dicky Mack, knock him down, and then bite him.
The dog’s attack left the boy with deep lacerations to both his throat and his chin. Paramedics were called to the scene, and after being stabilized, the boy was taken by ambulance to the local emergency room. The boy remained hospitalized for three weeks while pediatricians and plastic surgeons treated his injuries.
After Dicky’s release, doctors informed his father that Dicky would require several more corrective surgeries to completely repair the damage to his face. Already facing large medical bills from his son’s hospital stay, Ken Mack filed a dog bite injury claim and sought a settlement from the neighbor to cover Dicky’s medical bills.
When no settlement was reached with the neighbor’s homeowners insurance company, Ken Mack filed suit.
As part of the work leading up to the trial for Mack’s dog bite injury claim, Mack’s attorneys deposed Kimberly Tanner. Tanner testified his dog was about 8 months old when it bit the younger Mack.
He went on to say he purchased the dog from a private owner when it was 12 weeks old. At that time, he said, the dog weighed about 25 pounds and he weighed the dog every month or so after he purchased it.
By Tanner’s own estimation, the dog weighed 80 pounds at the time of the attack.
Mack’s attorneys also got a subpoena for the leash the Rottweiler was on at the time of the attack. For reasons still unknown, Tanner didn’t throw the leash away. During his deposition Mack’s attorneys asked Tanner to identify the leash. Tanner testified it was the same leash he used to walk his Rottweiler on the day of the attack. Mack’s attorneys asked Tanner to take a pen and initial and date each piece of the broken leash.
During trial, Mack’s attorneys produced a leash identical to the brand color and strength of the leash Tanner produced at his earlier deposition. Over the objections of Tanner’s attorneys, and with a promise to the Court to tie the admission of the leash to a relevant question, the Court admitted the new leash and the Rottweiler’s broken leash into evidence.
Mack’s attorneys called Tanner to the witness stand. They asked him to identify the broken leash. Tanner testified it looked like the one he used to walk his Rottweiler the day of attack. Mack’s attorneys asked Tanner to look closer at the broken leash and then asked if those were his initials and date marked on both pieces of the broken leash.
Upon closer examination, Tanner admitted those were the initials and date mark he placed on the pieces of the broken leash during his sworn deposition.
Mack’s attorneys asked Tanner to read aloud to the Court the instructions on the label attached to the new and otherwise identical leash. Tanner read the following:
This leash is appropriate for an animal weighing no more than 47 pounds. Using the leash on an animal weighing more than 47 pounds may result in rapid deterioration, breakage or separation.
Mack’s attorneys rested their case. Before they called Tanner to the stand, they had called three different witnesses all of who testified that they had heard Tanner boast about how aggressive and strong his dog was. The attorneys had also called Ken Mack himself who testified that Kimberly Tanner had boasted to him that the dog “could tear the head off someone.”
Tanner’s attorneys attempted to refute or at least balance out this testimony. They called two of Tanner’s neighbors to testify on Tanner’s and the dog’s behalf.
The first neighbor said although the dog often growled and barked, it never “snapped at” her, or attempted to bite her. The second neighbor testified she often babysat for Tanner’s two children prior to the dog bite injury claim, and she never saw the dog penned in a confined area, or in any way taunted or abused.
Tanner’s attorney also called Tanner to the stand. Tanner’s testimony about the peaceful and non-aggressive nature of his Rottweiler was similar to the preceding witnesses. On the question about the leash manufacturer’s explicit warnings, Tanner testified he had been using that leash for several months, and was unaware of its published limitations.
Tanner further testified the leash was given to him by the people who originally sold the Rottweiler to him. At that time the leash did not have a label, or any other markings which would have put him on notice about the leash’s poundage limitations.
He said if he saw any deterioration of the leash, or had any prior knowledge of its limitations, he would have discarded it and purchased another more appropriate leash.
After hearing the testimony, reviewing the evidence and listening to the arguments of counsel, the Court ruled as follows:
“We have previously held the owner of a domestic animal will be held liable for harm caused by that animal if the owner knew or should have known of that animal’s vicious propensities.
In this case although we considered the defendant’s testimony to be credible, we cannot permit his purported lack of knowledge of the maximum leash poundage limitations to relieve him of responsibility for the injuries his animal caused.
A reasonable and prudent person would have known when a dog’s weight increases from 25 to 80 pounds a leash should normally be changed to accommodate the weight increase. The defendant failed to do so.
We therefore hold in favor of the plaintiff and against the defendant.”
The owner of an animal may be held liable for an injury caused by that animal where although not apparently vicious, the dog’s aggressive tendencies were known, or should have been known to the owner.
In a dog bite injury claim, the fact that the dog in question hasn’t injured anyone before the plaintiff does not mean the defendant is not liable. The propensity of an animal to cause harm to an individual should, in almost every case be a foreseeable harm.
It is the owner’s duty to be aware of his animal’s “proclivity for aggressive behavior” whether that animal has evidenced aggressive behavior in the past or not.
Because of the likelihood of serious bodily injury or death which may result from an animal’s attack, the Courts will seldom permit an animal owner to wait until that animal injures someone before it will assign liability.
Information from Injury Claim Coach
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