Often we encounter pet dogs in public, indoors and outdoors. Or, we want to take our furry friends with us. And as we know, we will run across other people and their dogs in public too. What is a dog owner’s duty to prevent harm to others in such situations?
As we have discussed previously on our blog, Munro Byrd often helps people who have been injured by dog attacks. But we’re also dog owners who want to be responsible. Since our last post about dog bites, the federal court in the Western District of Virginia issued an opinion about the duties owed by dog owners to the general public when out and about.
This is an area that lawyers, and even judges, often get confused. Virginia does not have a lot of published cases on this subject. Many people have heard of the so-called “one bite rule,” which relates to proving that a dog’s owner had some prior notice that the dog posed a risk. But as the federal court recently clarified, a dog owner’s duty to control his dog does not require proof of prior aggression.
This is because Virginia recognizes two separate and distinct duties regarding the owners of domesticated dogs. The first is a general duty that is set forth in Virginia Model Jury Instruction No. 29.010 which provides as follows:
The owner of a breed of animal must take notice of the general, natural inclinations or characteristics of the breed of that animal. The owner must also take notice of the inclinations or characteristics peculiar to the animal that he knows about or should have known about. If any of those inclinations or characteristics are of a kind likely to cause injury, the owner has a duty to use ordinary care to prevent any reasonably foreseeable injury.
If an owner fails to perform this duty, then he is negligent.
This statement of the law tracks the Supreme Court’s holding in Butler v. Frieden, 208 Va. 352 (1967). There, the Court held that dog owners have a common law duty to exercise ordinary care “to protect other persons from injuries that might be inflicted by” their dogs. Butler v. Frieden, 208 Va. 352, 355 (1967). This is a duty that applies to all dog owners (and indeed, all animal owners).
As the Western District has just clarified in Tipold v. Ross, once the dog engaged in violent or aggressive conduct, the owner is on notice of the dog’s “aggressive or violent propensities.” Case No. 4:24-cv-00022 (W.D. Va., Danville, April 29, 2005). At that point, a heightened duty of care applies to the dog owner. Virginia courts have often referred to this as the “one-bite rule”. People often misunderstand the “one-bite rule” to mean that they get a free pass until such time as the dog bites or attacks someone. But this isn’t the case.
So, every dog owner owes a common law duty of care to act reasonably to protect others from injuries. However, once the dog owner is on notice of any aggressive or violent tendencies, the heightened duty of care applies. See generally Smith v. Simmons, 89 Va. Cir. 213 (Va. Cir. Ct., 2014). So, even if a dog hasn’t bitten or been aggressive in the past, the dog’s owner must still act with reasonable care to prevent others from being harmed.
The Western District of Virginia recently dealt with this issue in the Tipold case referred to above. There, the plaintiff was bitten by defendants’ dog in a store in Henry County; defendants are husband and wife. Their dog had never bitten anyone. On the day in question, the defendants talked to some other people in the store and had their dog on a leash which defendant-husband held. When plaintiff got close to the dog, the dog lunged at her and bit her left hand. This occurred while defendants talked to other customers in the store.
Defendants moved for summary judgment to dismiss the case without a trial, arguing that the heightened duty of care didn’t apply because the dog had never acted violently or aggressively. Defendants also argued that the dog attack was completely unforeseeable and they, therefore, couldn’t be held responsible for the dog bite.
Upon consideration of the matter, the Court agreed that the heightened duty of care didn’t apply. The Court, however, determined that material issues of fact existed as to whether the husband properly discharged his common law duties. Specifically, the Court explained that:
Reasonable prudence under these circumstances undoubtedly required Defendants to remain attentive to their surroundings, including to the presence and relative location of other shoppers, and to maintain adequate control of their dog. [Defendant] conceded as much at his own deposition …
But the record, when viewed in the light most favorable to Plaintiff, indicates that Mr. Ross may have failed in his duty to exercise reasonable vigilance and control. The [defendants] engaged in conversation with other store patrons for approximately 20 minutes with [the dog] by their side. Throughout this conversation, [husband] had his back turned to the busy shopping aisles behind him and, by his own admissions, was generally oblivious to the movements of other patrons – i.e., potential triggers of an aggressive reaction by his (or potentially any) dog. A reasonable jury could conclude from this evidence that [husband], who elected to bring his dog into a busy retail environment, fell short of his legal duty to keep a watchful eye on his surroundings.
The Court went on to note that there was a discrepancy in the established record regarding the witness’ testimony about how far plaintiff was from the dog when it attacked her. So, a jury could conclude that defendant-husband “failed to maintain proper control of his dog under the circumstances.” Put another way, defendant-husband may have failed to keep the dog close enough to him, or sufficiently restrained, to prevent the dog from attacking anyone.
As to defendant-wife, the Court found that she had no control over the dog at the time the dog attacked plaintiff and dismissed her from the case.
The Tipton case is important because it addresses the two distinct duties of care that dog owners owe to the public. This discussion will be helpful to plaintiffs in future cases. The Tipton case also makes clear that a dog owner isn’t free of fault for a dog attack just because a dog hasn’t bitten anyone before.
If you have been injured as a result of a dog bite or attack, please contact us. Our firm regularly handles personal injury cases and has extensive experience representing people who are victims of dogs. We are here to help.
We cannot promise similar results in all cases, but if you have questions about a personal injury claim in Virginia, call us. We litigate such cases in Roanoke City and County, Montgomery County (Christiansburg, Blacksburg), Lynchburg, Abingdon, Martinsville, Rocky Mount, Wytheville, Bedford, Covington, Harrisonburg, Richmond, Charlottesville, Lexington, or Staunton. We practice in rural areas like Bath County, Campbell County, Giles County, Craig County, Smyth County, Alleghany County, Pulaski County, Franklin County, Campbell County, Carroll County, Patrick County, Floyd County, Stuart County, Pittsylvania County, Henry County, and Wythe County. We also litigate in Virginia federal courts, including those divisions in Roanoke, Abingdon, Danville, Harrisonburg, Charlottesville, Alexandria, and Richmond.