Lachenmeier, Enloe & Rall - February, 2004 Publication

Don't Let a Claim Bite You - Another Look at Dog Bite Cases

It seems lately that there have been more dog bite claims. I think that it may have to do with the changes to ORS 31.360 which took effect a little over a year ago on January 1, 2008. ORS 31.360 now provides:

(1) For the purpose of establishing a claim for economic damages, as defined in ORS 31.710, in an action arising from an injury caused by a dog:

(a) The plaintiff need not prove that the owner of the dog could foresee that the dog would cause the injury; and

(b) The owner of the dog may not assert as a defense that the owner could not foresee that the dog would cause the injury.

(2) This section does not prevent the owner of a dog that caused an injury from asserting that the dog was provoked, or from asserting any other defense that may be available to the owner.

(3) This section does not affect the requirements for an award of punitive damages provided in ORS 31.730(1).

In other words, the owner of a dog is strictly liable for the economic damages incurred by someone bitten by the owner’s dog. I think this makes dog bite claims much more appealing to pursue.

However, foreseeability is still an issue when it comes to determining non-economic damages. And this is what prompted me to decide to write about this issue. In a dog bite claim I recently settled in which my clients’ dog was accused of attacking a mail carrier – the stereotypical dog bit scenario, it became clear that obtaining the dog’s vet records is crucial in evaluating any dog bite claim.

Before the mail carrier filed suit, the adjuster had interviewed the husband and wife who owned the dog (whom for purposes of this article we will call “Fido”) as well as their son who was present when Fido bit the mail carrier. According to the owners, Fido may have barked too much but he was a gentle dog and they had no inkling that Fido might harm someone. Their son agreed with that assessment. The adjuster also interviewed neighbors who said they had never had any concerns about Fido’s temperament. Therefore, it was concluded that no non-economic damages were owing because there was no way that Mr. & Mrs. Owner could know that Fido might bite someone. Hence the lawsuit.

I met with my clients, the owners, after being retained to handle the lawsuit. Mr. Owner maintained that he had no concerns about the dog. Mrs. Owner at first claimed that she had no reason to think Fido would bite someone. I then asked if Fido had seen a vet since they got him. Mrs. Owners said “yes” and then low and behold she had a vague memory of the vet saying something about being worried that Fido would bite someone some day. So I naturally asked Mrs. Owner to get me the vet records. When she finally got them to me, they were quite interesting to say the least. Here are some of the highlights:

“a little dominant.”
“He does growl.”
“has muzzle at home – muzzled to exam (growling)”
“Lunges at certain people.”
“Minimal dental exam due to aggression”
“Fear biter, but hasn’t bitten anyone."

The vet records would be admissible since there is no dog-vet privilege. These particular entries would be enough to allow a jury to find that Mr. & Mrs. Owner knew or should have known that Fido would bite someone. Before we conducted any further discovery, we settled this case for a modest amount. Luckily for us, the mail carrier’s attorney had never requested the vet records but we knew that the existence of the records would come out during depositions.

Accordingly, I think it is vital in any dog bite case to make sure you obtain the records of any treating vets when you are determining liability and evaluating the value of the case.

As the economy continues to struggle, I anticipate there will be more people who start to feel that they can earn money through filing claims and/or lawsuits. With the way people feel about taking their dogs everywhere (I saw a small dog in a woman’s purse at Fred Meyer the other day), and with the changes to ORS 31.360 making the recovery of money for a dog bite easier, I think we will see an increase in dog bite claims over the coming months. Hopefully I am wrong, but unfortunately after being a civil defense attorney for almost 15 years, I have a feeling I am right.

Please direct any questions in this area of law to the author, Lori DeDobbelaere, at 503-768-9600, or by email to lori@lerlaw.com.