Survey of the challenges and solutions presented in canine claims

1. Taking a Bite Out of Canine Claims
Presented by
Ronald Payne, Partner J.T. Wilson III, Partner
Lewis Brisbois – Chicago Lewis Brisbois – Chicago
Ron.Payne@lewisbrisbois.com Johner.Wilson@lewisbrisbois.com

2. Disclaimer
The content of this presentation is provided for informational purposes only.
Information contained herein is not intended as, nor does it constitute, legal, medical or
professional advice, nor is it an endorsement of any source cited or information provided
from any other source.
This presentation does not amend, or otherwise affect, the provisions or coverages of any
insurance policy or bond issued, nor is it a representation that coverage does or does not
exist for any particular claim or loss under any such policy or bond. Coverage depends on
the facts and circumstances involved in the claim or loss, all applicable policy or bond
provisions, and any applicable law.
In no event will the company or any of its subsidiaries and affiliates be liable in contract or in
tort to anyone who has access to this presentation for the accuracy or completeness of the
information relied upon in the preparation of this presentation or for the completeness of any
recommendations from cited sources. Participants should consult source material for more
detail.

3. America’s Best Friend
• There are approximately 171 million pet dogs in
the world.
• The United States has the highest pet dog
population in the world at 78.2 Million dogs.
• This is more than the next three countries
combined (Brazil, China, Russia).

4. But Dogs are not Always Friendly
• According to the CDC there are 4.7
million dog bite injuries each year.
• Over 800,000 of those bitten seek
medical care. Almost half of those are
children.
• 386,000 need emergency medical
care.
• Over 1000 people go to the
emergency room with dog bite injuries
every day.
• Dog bites account for 5% of ER visits.

5. Dog Bites Injuries
• Most dog bite injuries are non-fatal.
– However, there were 177 dog attack fatalities in the U.S. from
2011 to 2015.
• Even non-fatal attacks are damaging and costly:
– Reconstructive plastic surgery
– Fractured bones
– Laceration and puncture wounds
• Most common victims are the most vulnerable:
1. Children
2. Elderly
3. Postal Workers

6. Why Does this Matter to You?
• Dog attack victims in the US suffer over $1 billion in
monetary losses every year.
• Dog bites accounted for more than one-third of all
homeowners insurance liability claim dollars paid out in
2015, costing more than $570 million.
• The average cost paid out
for dog bite claims was
$37,214 in 2015.
• From 2003 to 2015 the
cost of the average dog
bite claim increased
by 94.2 percent

7. Taking a Bite Out of Canine
Claims: Course Map
Primary Theories of Liability
Survey of Damages
Insurance Coverage Available
Defenses and Mitigation Strategies

8. Primary Theories of Liability
• Negligent Handling of Animals
• Strict Liability
• Wild Animals
• Dangerous Dog Acts
• Leash Laws
• Negligence Per Se

9. Negligent Handling of Animals
An injured person must prove each
element:
i. The person owned or possessed
the animal;
ii. The person owed a duty to
exercise reasonable care to
prevent the animal from injuring
someone;
iii. The person breached his or her
duty; and
iv. The person’s breach of the duty
proximately caused a person’s
injury.

10. Ownership or Possession
• This element is typically pretty straight forward
as the ownership of a dog is usually easy to
prove.
• However, be sure to identify all people who
owned or possessed the animal. In some cases
a landlord can be held liable for dog bites of his
or her tenant’s canine pets.

11. The Duty of a Dog “Owner”
• A dog owner has the general duty to exercise
reasonable care to avoid foreseeable injury to
other people.
• This claim does not focus on the actions of the
animal but upon the negligence of the owner.
• “All animals are not vicious and a possessor of
a non-vicious animal may be subject to liability
for his negligent handling of such an animal.”

12. A Landlord’s Responsibility
• A landlord can be held liable as well:
– Common Areas:
1. Had actual or imputed knowledge that a dog was in
a common area; and
2. Actually knew the dog had vicious propensities.
– Actual leased premises:
1. Actually knew that the animal was on the leased
premises;
2. Actually knew that the animal had vicious
propensities; and
3. Was able to control the premises.

13. Landlord’s Knowledge of Vicious
Propensities
• A landlord has been found to have the right and/or
opportunity to prohibit certain dogs upon leased
premises.
• In Maryland, a landlord had reservations about
allowing a tenant to keep pit bulls but knowingly
amended the lease to allow the tenant to keep
“two pit bulls” which triggered her potential liability.

14. Employer’s Liability
An employer can also be liable for its employees
dogs if it has given permission and consent to an
employee to harbor a dog on the employer’s
premises.

15. Breach of a Duty
• Walking a dog without a
leash
• Inadequately tethering the
dog in a yard
• Letting a dog roam free
• Failure to properly maintain a
fence or gate
• Failure to secure premises
• Failing to take action to stop
an ongoing attack

16. Strict Liability – Dangerous
Domestic Animals
An injured person must prove each element:
i. The person owned or possessed the animal;
ii. Animal had dangerous propensities abnormal to
its class;
iii. The person knew or had reason to know the
animal had dangerous propensities; and
iv. The dangerous propensities were the producing
cause of a person’s injury.

17. Dangerous Propensities
• Did this particular dog act in a way
different from other dogs?
- Attack without provocation?
- Is it generally ferocious?
- Tendency to growl, snap, or bare
its teeth?
- Is it a guard dog?
- Prior bites?
• Normal canine behavior such as
barking or chasing small animals is
insufficient to demonstrate dangerous
propensities.

18. Knowledge of Dangerous
Propensities
• If a person knows that his dog:
- Does not like children;
- Attacked people for no reason;
- Is a guard dog;
- Needed more restrictive means of control (spike
collars)
• OR The person knew enough about the dog that
he SHOULD HAVE KNOWN that it was
dangerous.

19. Pit Bulls
• The combination of molosser breeds, including pit bulls,
rottweilers, presa canarios, cane corsos, mastiffs, dogo
argentinos, fila brasieros, sharpeis, boxers, and their
mixes, have inflicted over 86% of attacks resulting in bodily
harm from 1982 to 2014.
- Pit bulls responsible for 3397 dog
attacks including 295 deaths in
that time frame (Rottweilers ranked
second with 85 deaths)
- Pit bulls responsible for 59% of 88
fatal U.S. dog attacks from 2006
to 2008.

20. Legal Response
• Many states have begun to classify
Pit Bulls as a dangerous domestic
animal by breed:
• “Pit bulls as a breed are known to
be extremely aggressive and are
bred as attack animals” (FL)
• “Pit bull dogs “bite to kill without
signal” (PA)
• “a unique health hazard . . . [with]
capacity for extraordinarily savage behavior” (MN)
• “If it is a pit bull the danger is inherent in that particular breed of
dog and the knowledge element is met . . .” (MD)

21. Texas & the Pit Bull
• Texas Dangerous Dog Act:
– Contains no specific state-wide canine breed
restrictions and under Section 822.047 a county or
municipality may NOT place additional
requirements or restrictions specific breeds

22. Producing Causation v. Proximate
Causation
• Under Negligent Handling Proximate Cause meant
the dog owner must foresee his actions might
cause injury.
• Under Strict liability, the “producing cause of injury”
means that the dog owner is liable even if the
injury was not foreseeable.

23. Wild Animals – Strict Liability
i. A person either reduced a wild animal to his or
her possession or control or introduced a wild
animal into an area;
ii. The wild animal had dangerous propensities
characteristic to its class; and
iii. The dangerous propensities were the producing
cause of the injury.

24. Wild Animal
• Requires that the animal be one that ordinarily
lives in a natural state and which is not normally
tamed or domesticated.
– Tigers, bears, crocodiles, wolves
• There is a presumption
that a person who
keeps a wild animal
knows the dangerous
propensities of that
wild animal.

25. Texas Dangerous Dog Act
This Act is less a new theory of liability and more
about imposing new requirements including civil and
criminal penalties upon dog owners who own
“Dangerous Dogs.”

26. What is a Dangerous Dog?
A dog who is in a place other than an enclosure in which
the dog is being kept and that was reasonably certain to
prevent the dog from leaving the enclosure on its own,
that:
1. Makes an unprovoked attack on a person that
causes bodily injury; or
2. Commits unprovoked acts that cause a person to
reasonably believe that the dog will attack and
cause bodily injury.

27. Determination
• After an unprovoked act or attack, the dog is
reported to Texas Animal Control who:
1. Investigates the report; and
2. Makes a determination as to “dangerous dog”
classification and notifies the owner.
• The owner may appeal the determination.

28. Dangerous Dog Owner
Responsibilities
• Owner of dangerous dog must:
– Register the dog and pay a fee;
– Restrain the dog at all times and keep dog in proper
enclosure;
– Obtain liability insurance of at least $100,000;
– Comply with applicable municipal ordinances;
– Keep current on rabies vaccinations;
– Notify Animal Control of owner relocates with dog; and
– Notify proper authority if the dangerous dog attacks
someone.

29. Penalties
• Failure to comply include:
– Criminal - Class C Misdemeanor for:
• Attack causing serious bodily harm to a
person outside dog’s enclosure.
• Violating Ownership Conditions
– Administrative – Court-ordered euthanization
– Civil – Determination satisfies knowledge
element of strict liability claims.

30. Leash Laws
• Many Municipalities have “Leash Laws” creating
specific responsibilities for owners of domestic
animals.
• “Except in public areas where restraint of a dog is
not required (off-leash dog parks), an owner or
handler of a dog shall keep the dog under
restraint. A person holding a dog on a leash or
lead shall keep the dog under control at all times.”
Austin City Code § 3-4-1

31. Negligence Per Se
i. Injured person belongs to a class of people the
statute or ordinance was designed to protect, and
the injury is the type the law was designed to
prevent;
ii. The statute or ordinance is one for which tort
liability may be imposed when violated;
iii. The owner violated the law without excuse; and
iv. The owner’s act or omission proximately caused
the injury.

32. Who is Protected?
• You might think everyone – but there are a few
exceptions.
– Burglars and trespassers;
– Dog workers (Kennel workers, veterinarians, dog
groomers)

33. Working with Dogs – Assumption
of the Risk
• Veterinarian’s Rule is a form of assumption of the risk.
• By virtue of their occupation, these workers assume the
risk of being bitten or otherwise injured by the dogs under
their custody and control.
• “Common sense dictates that a person who grooms dogs
must be deemed to be aware of the risks . . .”
• This does not mean that a dog care worker can never
recover but it creates a significant barrier to negligence per
se theories.

34. Do Leash Laws Create Strict
Liability?
• Determined by the wording of the statute.
• Common general state statutes requires owners to
keep dog:
– “under reasonable control at all times, and to keep that
dog from running at large.”
– “Shall keep dog under restraint . . .”
• Therefore, if you fail to keep your dog “from
running at large” or “under restraint” you have
violated an ordinance under negligence per se
theories.

35. Commonly Violated Ordinances
• Leash laws
• Trespassing
• Fencing/enclosure requirements
• Licensing and vaccination
• Dangerous dog statutes

36. Damages Involved in a Canine
Bite Claim
• Medical Treatment
• Disfigurement
• Physical Impairment
• Lost Wages
• General Damages
– Pain & Suffering

37. Common Injuries
• Dog bites may result in one or more of the following injuries:
– Abrasions
– Lacerations
– Punctures
– Tissue loss and avulsion
– Crush injuries
– Fractured bones
– Sprain/strain injuries
– Scars
– Infections (rabies)
– Psychological Injuries

38. Common Medical Treatment
• Wound treatment
• Infection treatment
• Fractures
• Ligament repair
• Plastic Surgery

39. Medical Expense
ESTIMATED NUMBER AND COST OF DOG BITE CLAIMS
NATIONWIDE, 2003-2015 (1)

40. Disfigurement
• Plastic surgery is a primary driver of the average
medical expense in a dog bite claim.
– 42% of dog bite victims are 14 or under.
– Injuries occurred most commonly to the arm/hand
(45.3%), leg/foot (25.8%), and head/neck (22.8%).
– However, the majority (64.9%) of injuries among
children aged 4 years and younger were to the
head/neck region.
– Scarring must be taken into account.

41. Other Damages
• Physical Impairment
• Lost Wages
– Time missed for medical diagnosis, treatment, or recuperation.
• Pain & Suffering
– A child may suffer more from a dog bite than an adult. The child may, for
example, become terrified of dogs or have recurring nightmares.
– If a dog wasn't vaccinated for rabies, the person it bit will spend at least a
few anxious days wondering if the dog (which is probably quarantined) is
going to start showing symptoms of the fatal disease. A jury may
compensate the person for that suffering.
– If the injury was caused by a completely unprovoked attack, a sympathetic
jury is likely to award more money to the victim. The same goes for injuries
caused by breeds commonly viewed as unpredictable, such as Dobermans
or pit bulls.

42. Insurance Coverages
Dwelling
Automobile
Umbrella
Excess
Canine
Liability

43. Policy Distinctions Between
Dwellings
Policy Coverage
Interior of unitRenter’s
Homeowner’s
House and other
structures on property
Landlord’s
Building and common
areas
Deeded areasCondominium

44. Dwelling Insurance (General)
“Insured”
DEFINITION:
You and residents of your
household who are (a) your
relatives or (b) under 21 and in
care of relatives;
DOGS:
Covered if owned by an insured
(a) pet walker, (b)

45. Automobile
Scenario 1:
Owner leaves dog in car
with window down. Dog
bites through window.
Scenario 2:
Owner leaves dog in
open truck bed. Dog bites
passerby.

46. Umbrella
• Injuries
• Damages
• Losses
• Restriction:
– NOT covered by owner’s primary insurance (dwelling or
auto)

47. Excess
Scenario 4:
Dog maims swimsuit
model walking past car in
parking lot.
Scenario 5:
Dog mauls sculptor at
grocery store.

48. Animal (Canine)
DILEMMA:
Many companies refuse
coverage after one bite
POLICY CONSIDERATION:
54.4 Million U.S. homes
77.8 Million in U.S.

49. Defenses & Mitigation Strategies
1. One-Bite Rule
2. Provocation
3. Assumption of the Risk
4. Trespassing or breaking the law
5. Plaintiff was unreasonably careless

50. One Bite & You’re Out!
• Many states follows the traditional “One Bite Rule”
– This does not mean that a dog owner is absolutely free from
liability the first time a dog bites someone.
– Not a defense:
• To Negligence Per Se (Leash Law);
• If the owner acted negligently;
• If the owner had prior knowledge of dogs vicious
tendencies.
• In some states, after the first bite the dog and owner subject to
Dangerous Dog Act requirements.

51. Map from DogBiteLaw.com

52. Provocation
• Focus is not upon the view of the person provoking the dog, but rather it is the
reasonableness of the dog’s response that determines if provocation exists.
– Clearly provocative acts –
• Hitting or teasing the dog.
• Entering the territory of a chained or fenced dog.
• “Baiting” a dog.
• Unintentional provocation:
– Accidentally stepping on a dog's tail.
– A toddler tries to hug a strange dog.
– A child falls onto a sleeping dog.
– Petting a dog when it is eating.
– Going into a dog’s special territory.
– Intervening in a dog fight.
• Even if there was provocation, you need to also look at the reasonableness of the
response.

53. Assumption of the Risk
• Veterinarians
• Kennel workers
• Dog Groomers
• Dog Sitters, walkers

54. Trespassers & Lawbreakers
Most Dog bite statutes exclude trespassers.
• A child who stuck hand through a fence to pet
neighbor’s dog was a trespasser.
• A ten-year-old who climbed over a fence to
retrieve a ball and was bitten by a dog was a
trespasser

55. Comparative Fault – Sole Proximate
Cause
• Similar to provocation with a focus on the Plaintiff’s
careless actions.
– Did the Plaintiff:
• Have knowledge of the dog’s dangerous propensity?
• Know that he or she was entering the dog’s territory?
• Ignore "Beware of Dog" warning signs?
• Approach an unknown dog?

56. Ronald W. Payne
Ron.Payne@lewisbrisbois.com
312.463.3328
J.T. Wilson III
Johner.Wilson@lewisbrisbois.com
312.463.3340
Thank you!