Dog Bite Litigation

BCB, YOUR SOURCE FOR DOG BITE LITIGATION COUNSEL

At Burch, Coulston & Buncher, LLP, we know the intricacies of prosecuting and defending dog bite lawsuits. At BCB you will find experienced dog bite litigation counsel that know how to obtain optimal results, while providing the highest level of personal service. Such service includes: (1) working with you to develop a litigation plan and estimated budget for each stage of the litigation process to most effectively handle your case while keeping a tight control on costs; (2) keeping you up to date so you will always know the status of your case, and what to expect in the future; (3) being easy to quickly contact via telephone, e-mail, and fax; (3) providing the same personalized care and attention regardless of whether you are a large corporation or a sole proprietorship. If we set up a meeting with you, we will also provide you with an initial 30 minute consultation at no cost.

Dog Bite Litigation In General:

The following is intended only to provide a brief discussion of the types of issues typically encountered in dog bite litigation. This section is by no means a full dissertation on the law, and is not updated to reflect changes in the law. Accordingly, you should not rely on it when making decisions about your case (see "Disclaimer" below). Rather, it is important to promptly discuss the specific facts of your case with competent legal counsel (see section on "Statute of Limitations" below). At BCB we will provide you with unparalleled representation to get you the best possible results.

There are several theories of law on which a dog bite case may be prosecuted or defended. However, the most common are (1) strict liability based on statute, (2) strict liability based on common law, and (3) common law negligence.

A Word on Strict Liability:

Just because "strict liability" is imposed under the law for a certain event, this does not mean there are no legal defenses available. Strict liability simply means that in the particular case at issue, liability may be imposed under certain conditions regardless of whether the defendant was negligent (i.e., failed to act as a reasonable person under the circumstances was expected to act). Thus, even where the owner properly secures his ferocious dog to a tree in a reasonable manner, and the dog somehow manages to get free and attack someone, the owner may be liable under strict liable theory even though he was not negligent.

Strict Liability Based Upon Statute:

CA Civil Code §3342 is the "dog bite statute" in California. In general, the "dog bite" statute provides for strict liability when an owner's dog bites another while in a public place, or when the person is lawfully on the owner's property. Whether or not a person "owns" the dog is an issue of fact to be determined by the jury. The statute is fairly self explanatory and provides in part as follows:

(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.

Thus defenses include such arguments as the defendant was not the legal owner of the dog, but rather the dog was just hanging around the defendant's property. Another obvious defense is that the plaintiff was trespassing when on the owner's property. Another partial or complete defense to liability may be the plaintiff's comparative fault, or assumption of risk. [Johnson v. McMahan (App. 2 Dist. 1998) 68 Cal.App.4th 173; Burden v. Globerson (App. 2 Dist. 1967) 252 Cal.App.2d 468; Greene v. Watts (App. 2 Dist. 1962) 210 Cal.App.2d 103; Gomes v. Byrne (1959) 51 Cal.2d 418; Ellsworth v. Elite Dry Cleaners, Dyers and Laundry (App. 1954) 127 Cal.App.2d 479, 274; Smythe v. Schacht (App. 1 Dist. 1949) 93 Cal.App.2d 315.] "Secondary assumption of the risk" occurs such as where the plaintiff voluntarily attempts to care for an injured dog found in the street. [Davis v. Gaschler (App. 3 Dist. 1992) 11 Cal.App.4th 1392.] Other defenses are available as well that are not discussed herein.

Strict Liability Based upon Common Law:

If a plaintiff can't establish that the defendant was the legal owner of the dog, the plaintiff may then attempt to argue that the defendant was the "keeper" and thus liable based upon common law (i.e., judge made law) strict liability. [Smith v. Royer (1919) 181 Cal. 165, 168.] A "keeper" is one who harbors, protects, or shelters the animal. Buffington v. Nicholson (1974) 78 Cal.App.2d 37, 42; Smith V. Royer (1919) 181 Cal. 165, 169. Common law strict liability is harder to establish than statutory strict liability. This is because the plaintiff must establish that the keeper of the dog had actual knowledge of, or should have known of the animal's vicious propensities. [Northon v. Schultz (App. 1 Dist. 1955) 130 Cal.App.2d 488, 279; Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 283;Talizin v. Oak Creak Riding Club (1959) 176 Cal.App. 2d 429, 437.] Thus, one might establish actual notice by a prior biting or other such incidents that the owner was aware of, or perhaps by the fact that the dog was a pit bull that or other well known aggressive breed that the owner kept muzzled and chained. [Bulow v. Dawn Patro (1963) 216 Cal.App.2d 712, 728; Frederickson v. Kepner (1947) 82 Cal.App.2d 905, 908; Northon v. Schultz (App. 1 Dist. 1955) 130 Cal.App.2d 488, 279.]

If the plaintiff can establish the elements of the law, it is irrelevant whether or not the owner was negligent. Hence, this is referred to as strict liability. For instance, if the dog was well chained to a tree, but due to a hidden manufacturing defect the chain broke and the dog escaped and attacked a by-passer, the defendant would be strictly liable.

Again, most of the defenses above such as comparative fault, or assumption of the risk and perhaps others may be available as partial or complete defenses depending upon the facts of the case.

Liability Based Upon Common Law Negligence Theory:

The third most common theory of liability in dog bite cases is common law negligence. In such cases, plaintiff must prove that defendant was the keeper or had some other duty of responsibility in respect to the dog, that defendant could reasonably have anticipated that the dog's conduct would cause injury, that defendant did not exercise reasonable care to control the dog, and as a result, plaintiff was injured by the dog. Again defenses such as comparative fault, assumption of the risk, and other defenses may apply.

Other Theories of Liability & Defenses:

Again, we have only provided a very general discussion of the most common theories of liability and defenses. Other theories of liability and defenses may apply. Whether or not such theories apply, and how these theories of liability and defenses apply to your case requires careful legal analysis and scrutiny of the facts of your cases. Thus, you should not rely on the above to make decisions about your case. You should consult with a competent attorney regarding the specific facts of your case to determine your legal rights and to decide how best to proceed. At Burch, Coultson & Buncher, LLP, we know the intricacies of dog bite litigation. Whether you are a plaintiff or defendant, you and your case will receive the highest degree of personalized care and attention.

Statutes of Limitations & How Long Should I Wait Before Retaining An Attorney?

The statute of limitations for a personal injury action is generally 2 years (see Code of Civil Procedure §335.1). However, other statues may apply which shorten or prolong the period to bring a lawsuit, depending upon the specific facts of your case. Furthermore, memories fade, witnesses disappear, and evidence gets lost. Thus if you are a plaintiff, you should not delay in consulting with competent counsel regarding your case to avoid losing your rights or ability to effectively prosecute your case.

If you are a defendant, you have probably already been served with a complaint, and now are looking for a suitable attorney to represent you. A defendant who has been personally served with a complaint, must file a response to the complaint within 30 days, or risk having a default taken against him/her. Thus if you are a defendant, it is critical that you act promptly to find an attorney to represent you. If there is any chance that you have insurance that may cover your claim (such as homeowner's insurance), you should immediately notify all applicable insurance companies and request that they retain counsel on your behalf.

Why Should I Choose BCB?

See "What We Will Do For You."

More Information:

See "PERSONAL INJURY LITIGATION"
See "WHAT TO EXPECT DURING THE LITIGATION PROCESS"

Disclaimer:

The above information is intended to provide a very brief overview of some of the issues typically encountered in aforementioned types of cases. We accept no responsibility for the accuracy of the information contained herein. The information contained herein may not reflect changes in the law, and it is necessary to analyze the specific facts of your case and applicable laws to render an appropriate legal opinion. Furthermore, nothing on this web site should be construed as legal advice between an attorney and client. You should consult an attorney to obtain accurate legal advice regarding your specific situation.