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Legal Writing Sample
Please find below a memorandum prepared for Legal
Research and Writing
Completed: November 16, 2014
For: Ami Milligan
Topic: Analysis of the South Carolina Dog Bite Statute
as it pertains to who is legally responsible for the
injuries sustained when the owner of the dog is away.

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Memorandum
To: Paul Sampson
From: Lindsay Lee
Re: Possible Dog Bite Claim
Date: November 16, 2014
Issue
Under the South Carolina dog bite statute, if Nora Hursh did not excite the dog, can Peggy
Edmunds, the aunt of the dog owner, be held liable for damages Nora sustained when the dog’s owner,
Alex Edmunds, gave her permission to retrieve an item from his home while he was away, and while
there, Nora was bitten by his dog that was under the Peggy’s supervision?
Brief Answer
Yes, a court will likely find that Peggy Edmunds is liable for the damages Nora Hursh suffered
when Alex’s dog bit her. Under the South Carolina dog bite statute, for a property owner to be liable a
plaintiff must be bitten by a dog, while lawfully in a private place, and suffers damages, in which the dog
owner or property owner has the dog in their care or keeping are liable for; however, the property owner
is not liable if the plaintiff provoked the dog. A court will find that Nora was bitten by a dog and suffered
damages to her right hand. Additionally, a court will find that the bit occurred while she was lawfully on
the private property of Peggy Edmunds because she was given permission to be there. Additionally,
Peggy is probably liable as the dog’s caregiver or keeper because she was supervising the dog during the
time of the incident. Furthermore, a court will not find that Nora provoked the dog because the dog’s
reaction was out of proportion to Nora’s act.
Facts
While visiting Alex Thacker’s home, Nora Hursh was bitten by his dog. The day before the
incident, Nora was invited by some friends to go tubing. Nora did not have a tube of her own, but texted

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Alex for permission to borrow his and he then responded that she could. However, Alex was away from
his home for the weekend, so he instructed Nora to go to his aunt, the owner of the property, for the keys
to his apartment. On the day of the incident, Nora met with Peggy Edmunds, Alex's aunt, for the
apartment key. The key was attached to a key ring with a small, fabric pouch that contained dog treats.
Peggy explained to Nora that the pouch was used to remind her to give Alex's dog, Sadie, a treat the
couple times a month she has to let Sadie out while Alex is away.
Sadie lived in the basement with Alex. Peggy did not have too much contact with Sadie except
for when Alex was away due to her allergies. Despite her allergies, before Nora reached Alex's apartment,
Peggy told Nora that she let Sadie out into the backyard where Alex's apartment was located. As soon as
Nora reached the gate to the apartment, Sadie came towards Nora, tail wagging. Nora has been around
Sadie many times and has never been concerned about her safety around Sadie. Upon entering the gate,
Sadie displayed signs that she wanted to play. However, in light of time, Nora apologetically told Sadie
she could not play, but she gave Sadie a treat from the pouch.
Unsatisfied, Sadie raised her paw again indicating she wanted another. Nora, however, did not
oblige but promised Sadie she would give her another on her way out, and she proceeded toward the
apartment door. As she was walking toward the door, Nora dropped the key ring; as she bent down to
pick it up, Sadie bit her right hand. Nora, in pain, yelled out, alerting Peggy. Peggy then took Sadie inside
the apartment and drove Nora to the hospital. Nora sustained injuries to her right index finger and middle
finger and is concerned that the injuries may limit her opportunities in medical school. Nora claims she
does not know Sadie to be an aggressive dog and does not know why Sadie would bite her. However, she
is looking to bring suit against Peggy Edmunds since she knows Alex does not have any money.
Discussion
Peggy Edmunds will likely be found liable under the dog bite statute for the damages sustained
by Nora while lawfully on the private property because Sadie was under the care or keeping of Peggy at

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the time of the bite. Additionally, the court will likely not find that Nora provoked Sadie into biting her.
Under the South Carolina dog bite statute, a plaintiff must show that they sustained damages from a dog
bite that occurred while the plaintiff was lawfully in a private place, and the property owner has the dog in
their care or keeping. S.C. Code Ann. § 47-3-110(A) (Supp. 2013). However, if the defendant can show
that the plaintiff provoked the dog, then the defendant is relieved from liability. Id. § 47-3-110(B)(1).
A court will likely find that Nora was bitten by a dog and suffered damages. The medical reports
will show that Sadie bit Nora causing damages to her right hand, in which the second and third finger on
her hand needed surgery.
Nora will also be able to show that she was lawfully on private property because both Peggy and
Alex invited her there. The statute states that a person is lawfully on a private property when they are
given an express or implied invitation to enter the premises by the property owner or the lawful tenant. Id.
§ 47-3-110(A). Nora can show that Alex Thacker expressly invited her to his apartment through the text
messages, and that Peggy expressly invited her when she gave Nora the keys to the apartment. Therefore,
it can reasonably be found that Nora was lawfully on the private property when she was bitten.
It is likely that a court will find that Sadie was in the care or keeping of Peggy Edmunds during
the time of the bite because Peggy fed and watched over Sadie when Alex was away. Care or keeping has
been defined in a couple of South Carolina cases as a person who has control over the premises and
manifest responsibility over the dog. Clea v. Odom, 394 S.C. 175, 180, 714 S.E2d 542, 545 (2011); see
Nesbitt v. Lewis, 335 S.C. 441, 446, 517 S.E.2d 11, 14 (Ct. App. 1999). In Nesbitt, the court decided in
favor of the plaintiff, holding that those who have control over the property and have some care over the
dog are liable for any injuries the dog causes. Id. In this case, it was found that although Brenda, Gordon,
and Gloria have control over the property, Gordon was the only one who actually tended to the dogs. Id.
Thus, the court found that because Gordon maintained the responsibilities of taking care of the dogs,

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which includes feeding, playing, and taking the dogs to the vet, he is also liable for the damages sustained
because of the dog. Id.
Similarly, in Clea, the court ruled that because the defendant had exclusive control over the
property and allowed the dog to stay on the property for so many years, the defendant could also be liable
for the dog biting the plaintiff. Clea, 394 S.C. at 181, 714 S.E.2d at 545. In this case, a tenant chained the
dog to a tree continuously for ten years in the common area of the defendant’s apartment complex. Id. at
178, 714 S.E.2d at 544. Although the defendant did not assist in the care of the dog in the sense of feeding
the dog or giving it water, the dog was never taken off the property in the ten years it was chained to the
tree. Id. Thus, the court reversed summary judgment showing that it could be likely for a jury to find that
allowing a dog to live on one’s property for so many years is enough to satisfy a manifestation of
responsibility. Id. at 181, 714 S.E.2d at 545.
Conversely, in Bruce, the court found that even if the defendant has control over the premises, if
they have not established any responsibility for the dog then they are relieved from paying the damages
from the attack. Bruce v. Durney, 341 S.C. 563, 571, 534 S.E.2d 720, 725 (Ct. App. 2000). Motsinger
owned the property and allowed his daughter and son-in-law to live on the property with their dog. Id. at
565, 534 S.E.2d at 721. However, Motsinger did not manifest any responsibility for their dog. Id. at 566,
534 S.E.2d at 722. The court found that because Motsinger only owns the property and does not actually
care for the dog, he should not be held liable for any attacks. Therefore, in order for care and keeping to
be met, there must be both a control of the property and a manifestation of responsibility of the dog.
In the present case, it can reasonably be said that like the defendants in Clea, Nesbitt, and Bruce,
Peggy Edmunds has control over the property Alex and Sadie lived on. Similar to the defendant in Clea,
Peggy has allowed Sadie to live on the property and roam around in the backyard. A court will likely find
that Peggy has control over the premises and doesn’t mind that the dog is on the property, even when the
owner of the dog is away.

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However, unlike the defendant in Bruce, a court will find that Peggy has maintained some
responsibility over the dog when Alex is away. As in Nesbitt, Gordon was found liable with the mother
because he cared for the dogs. Likewise, a court will find Peggy liable because she takes on the
responsibility for feeding and giving Sadie water whenever Alex has to stay late at school. Although,
Gordon maintained a greater responsibility of the dogs than Peggy, a court will still find that some
manifestation of responsibility is enough to show that the dog was under her care or keeping. Therefore, a
court will likely find that Peggy Edmunds had the dog under her care or keeping at the time of the
incident.
Although South Carolina courts have not decided defined provocation under the dog bite statute,
they will likely rule that Nora Hursh has not satisfied the provocation exception. However, courts in other
jurisdiction have defined provocation under their dog bite statutes. The Appellate Court of Illinois found
that to satisfy provocation, the defendant must prove that the dog’s reaction was proportionate to the
person’s act toward the dog. Nelson v. Lewis, 344 N.E.2d 268, 272 (Ill. App. Ct. 1976). This rule was
applied in Nelson where the plaintiff was bitten by the defendant’s dog when he accidentally stepped on
the dog’s tail. Id. at 270. Though the court found that the stepping on the tail was unintentional, they
decided that even unintentional provocation is enough to satisfy the provocation element. Id. 344 N.E.2d
at 272. Therefore, the court held the defendant, in which the defendant was not liable for damages done to
the plaintiff due to provocation. Id.
Likewise, the Supreme Court of Minnesota decided that intentional or unintentional provocation
is enough to satisfy provocation under their dog bite statue. Engquist v. Loyas, 803 N.W.2d 400, 406
(Minn. 2011). However, unlike Illinois, Minnesota uses the reasonable person rule when deciding
whether provocation is present in a dog bite case. Id. In Engquist, the court ruled that “provocation
involves voluntary conduct that exposes the person to a risk of harm from the dog, where the person had
knowledge of the risk at the time of the incident.” Id. Under this ruling, the court concluded the plaintiff

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provoked the dog when she tried to hug the dog during a time when a reasonable person would know not
to bother a dog. Id. at 407.
Although both states define provocation in a similar fashion, a South Carolina court is more likely
to use the Illinois authority on provocation because more states cite to Illinois on provocation. Moreover,
the court in Bruce cited to an Illinois case when deciding on care and keeping under the dog bite statute.
Bruce used Geonnenwein by Goennenwein to show that a dog owner is defined as the one who provides
some kind of care, custody, or control. Bruce, 341 S.C. at 573, 534 S.E.2d at 726 (citing Geonnenwein by
Goennenwein v. Rasof, 695 N.E.2d 541, 544 (Ill. App. Ct. 1998)). Therefore, a South Carolina court will
likely follow another Illinois case when deciding the test for provocation.
In applying the provocation rule in Illinois, the court would likely rule that Nora did not provoke
the dog. Under this ruling, it can be found that Sadie’s biting of Nora’s hand was out of proportion to
Nora’s action of bending over to grab the key ring. A court will rule that Nora was not doing any action
that could constitute provocation, especially since she was not aware of Sadie presence when she was
picking up the keys. Therefore, a court will likely find that Nora does not satisfy the provocation
exception.
Conclusion
Accordingly, a court will likely hold that Peggy is liable under the dog bite statute for the
damages sustained by Nora when she was bitten while lawfully on Peggy’s property, and that Nora did
not provoke the dog into biting her.