When A Dog Bites
This article was prepared by Solomon Law Firm for the New Hampshire Bar Association and published in the N.H. Union Leader.
There are two routes to recovery available to persons who suffer injury to themselves and/or their property as a result of the vicious or malicious acts of a dog.
Recovery of damages for injuries suffered may be obtained from either the owner or the keeper of the dog, but not from both. From your question, it appears that your neighbor is the dog's owner and suit can be brought against him. A more difficult question arises when the dog is not in the care of the owner, but is being kept temporarily by another person. If some person other than the dog's owner has taken over the management, control, and care of the dog, with or without the owner's permission, that person may be held liable for injuries the dog causes while under the keeper's care. Under these circumstances, the injured party would elect to sue either the owner or the keeper.
Under common law rules, it is often said that "for dog owners, the first bite is free." This adage reflects the fact that, to recover in a common law negligence suit, an injured person must prove that the dog's owner had knowledge of the dog's vicious propensities and that given that knowledge, the dog owner was negligent, or careless, in the control of the animal. Obviously, proving that a dog owner knew about the vicious propensities of a dog could be a difficult hurdle to leap, particularly absent any prior attacks or bites by the dog which would have alerted the owner.
Therefore, in a negligence suit, assuming the dog owner did not know of the dog's propensities, an owner could use the lack of knowledge of the dog's propensities as a defense to the charge of negligence. In a negligence suit, an injured person must prove that the owner did not exercise "reasonable care." Reasonable care is a legal standard which is applied to the particular set of factual circumstances in each case: what would a reasonable person have done in those circumstances? Therefore, the dog owner's efforts to manage, control and contain his animal would be weighed against what a reasonable dog owner, who had no knowledge of his dog's vicious propensities, would have done. On the other hand, if the dog owner knew of the dog's vicious propensities the same reasonable care standard would apply, but it would be what reasonable care should have been used, knowing the dog was vicious.
The New Hampshire State Legislature, in order to relieve the injured party from the potentially difficult burden of showing the owner's knowledge of a dog's vicious propensities, passed a dog bite statute (RSA 466:19) which imposes "strict liability" on either the owner or the keeper of the dog for any injuries and property damages the dog causes.
The Dog Bite Statute says: "any person to whom or to whose property, including sheep, lambs, fowl, or other domestic creatures [injury is caused] shall be entitled to recover damages from the person who owns, keeps, or possesses the dog". This is a strict liability statute; the dog owner is held strictly liable for any injuries a dog causes whether or not the owner knew the dog had vicious or malicious propensities. Under the statute, what the dog owner knew or did not know is irrelevant; the focus is on the dog's act. Since the statute renders the owner's knowledge a non-issue, it also eliminates any defense for the dog owner that he used reasonable care under the circumstances to restrain the dog. In a strict liability case, the highest possible degree of care affords the owner no escape from liability.
The single element required for the recovery of damages for injuries under the Dog Bite Statute is that the dog in question acted viciously or maliciously. The New Hampshire Courts have interpreted malicious or viscous acts by a dog to include some act beyond the mere presence of the dog. For example, if a person is frightened by the very presence of the dog, and reacts to that presence in such a fashion as to injure himself, a Court would most likely find that the dog did not act maliciously or viciously. On the other hand, a dog does not have to actually bite a person for its actions to be classified as malicious or vicious. A malicious act can be a dog running at a person, or onto the person's property, which causes that person to fall or otherwise be injured, even if the dog never actually bit that person.
It should be noted that although the Dog Bite Statute eliminates the defense of reasonable care by the dog owner; the dog owner may assert the defense of Comparative Causation (contained in RSA 507:7-d); a statute which the New Hampshire Supreme Court has held pertains to all cases brought under the Dog Bite Statute. The dog owner may claim that the injured party was wholly or partially at fault for the injuries suffered because of the manner in which the injured party responded to the dog's act. If the dog owner shows that the injured person voluntarily or unreasonably exposed himself to a foreseeable risk of injury, the injured person may receive reduced compensation for the injury suffered. The reduction is generally proportional to the degree of the party's fault in being injured in the first place. This proportion can be anywhere from 1% to 50%, but not higher. If the injured person is found to be over 50% comparatively at fault there is no award. A court would consider all the circumstances surrounding the incident in assessing any comparative fault.
From what we know of your particular circumstances, it appears that your neighbor's dog acted viciously when it broke loose from its pen, ran onto your property, and charged your dog. Without knowing more about the property and your physical location in relation to your dog's location at the time of the attack, it would also appear that you had little or no time to think about any alternative course of action. A court therefore, would likely find that you acted reasonably, given the imminent attack on your dog, when you intervened to prevent his subsequent injuries. It is reasonable, therefore, that you consult an attorney in this situation.
The attorneys at Solomon Professional Association understand the importance of making the law available to our community. We analyze your problems and discuss the law plainly so that you can make the legal decisions that are right for you. If you have legal questions, call us at 1-877-LAW HELP (1-877-529-4357).
REMEMBER, THERE IS NEVER A FEE CHARGED UNTIL YOU RECOVER THE COMPENSATION YOU DESERVE.