Lachenmeier, Enloe & Rall - February, 2004 Publication

Beware of Dog
A Review of Dog-Bite-Related Claims in Oregon
June 2005

     Just as there are special breeds of dogs designed for various purposes, from herding and hunting to search and rescue, there are also special breeds of attorneys. While your standard insurance defense lawyer may resemble the noble German Shepherd and certain plaintiff’s attorneys may resemble the Pit Bull, there will also always be the yipping ankle-biters like poodles, spaniels, and dog-bite attorneys.

     The internet is rife with dog-bite websites littered with horrific pictures of bloody-faced children bearing titles that read: “Get big money for your dog bite,” and “Call us before you call the insurance company.” Nowhere is this more true than in California, where the infamous California dog-bite statute has given rise to an entire industry of law-mills that grind out a high volume of dog-bite claims.

     That law, California Civil Code §3342, provides for the strict liability of a dog owner for the very first bite, regardless of any prior acts of viciousness. The only caveat is that the “victim” must lawfully be on the premises where he or she was bit. The fact that the animal has a non-aggressive history is no defense.

     The situation is not so bleak for insurers in Oregon, but that is not to say that we don’t have our own dog bite industry. Just as the Xoloitzquintle (Mexican Hairless Dog) is rarer than, but just as annoying as, the poodle or spaniel, the Oregon dog-bite lawyer is just as irritating as his California cousin. The website for one such Oregon dog-bite lawyer actually declares: “Don’t talk to anyone until we tell you what the insurance company will try to get away with, and how to get the evidence you need to get a lot of money.”

Dog Owner Liability

I loathe people who keep dogs.
They are cowards who haven’t got the guts to bite people themselves
-August Strindberg

     Oregon dog-bite law is nowhere near as drastic as the California statute. Oregon’s rules are found in the common law, and are well established. The general rule is that the owner of a dog is liable for dog-bite injuries only if the owner knew or should have known of the dog’s dangerous propensities. See Westberry v. Blackwell, 282 OR 129 (1978). Dog owners may also be responsible for knowing the propensities of the their dog’s breed.

     The former so-called “one bite” rule no longer applies. Butler v. Pantekoek, 231 OR 563 (1962). A prior biting or lunging incident by a dog is not necessarily determinative of a dangerous propensity, but may be if the facts of the prior incident match those of the later event. See generally Harrington By and Through Harrington v. Dederer, 58 Or App 236 (1982). Furthermore, while a “beware of dog” sign may raise a question of fact, it is not necessarily an admission of viciousness. Dargen v. King, 87 Or App 349 (1987). Those sorts of details do, however, raise an issue of material fact appropriate for a jury, and are likely sufficient to defeat a motion for summary judgment.

     Evidence of the dog’s good nature is admissible to refute evidence of its dangerous nature. Butler, Supra. However, if a plaintiff is able to leap the “dangerous propensity” hurdle and prove that a dog is vicious, they must still plead and prove that defendant knew, or in the exercise of reasonable care, should have known about the dog’s dangerous nature.

     There appears to be one significant loophole in this scheme, however. Most Oregon cities have some version of a “leash law” that prohibits dogs from running unrestrained. If the dog bite occurs within the limits of a city with such a law, and the attack occurs as a result of a dog being loose and unsecured, a dog-bite plaintiff may assert a negligence per se claim based on the violation of the statute, regardless of the owner’s knowledge of any dangerous propensity. The Oregon Supreme Court stated in Lange v. Minton, 3030 OR 484 (1987), that a violation of a leash law could support a negligence per se claim if the injured person is a member of the class intended to be protected by the statute, and if the harm was of the kind, which the ordinance was intended to prevent. A careful reading of the statute is required though, since the actions of the dog owner must violate the specific provisions of the ordinance for it to apply.

Property Owner Liability

Inspector Clouseau: I thought you said your dog did not bite!
Hotel Clerk: That is not my dog.

     A dog-bite lawyer will often sniff around for the deepest pockets, and that may lead to non-dog-owning landowners. Like any other premises liability claim, the duty that the landowner owes to the injured person is determined by their status on the premises at the time of the accident.

     A more-complete discussion of premises liability would make a good topic for another article. For our purposes here, it is enough to understand the basic status levels. First, a landowner owes the highest duty of care to invitees, such as business visitors, and is required to affirmatively protect them or warn them about latent defects on the property. See Cassidy v. Bonham, 196 Or App 481 (2004). Dangerous conditions would include the presence of a dog with known dangerous propensities.

     A landowner owes a slightly lower duty to licensees, such as social guests, and is required to make reasonable attempts to protect them from, or warn them about, dangerous conditions that the landowner knows or should know about. See generally Nelsen v. Nelsen, 174 Or App 252 (2001).

     Finally, with regard to Trespassers, the third and lowest status level, landowners may be liable only for willful or wanton acts that cause injury. Colmus v. Sergeeva, 175 Or App 131 (2001). Therefore, a trespasser would likely have no claim if the landowner did not willfully or wantonly cause the dog to attack.

     Surprisingly, landowners in Oregon are exposed to additional liability for attacks that take place away from their premises. In Park V. Hoffard, 315 OR 624 (1993), the Oregon Supreme Court held that a landlord may be held liable for injuries caused off-property by their tenant’s dog, if they consented to the dog’s presence and had knowledge that the dog unavoidably created an unreasonable risk of harm.

     The Court of Appeals, however, limited the liability exposure of landowners in Conant v. Stroup, 183 Or App 270 (2002), recognizing that a land owner was immune from liability for a dog bite under Oregon’s recreational use statue, ORS 105.682. In that case, plaintiff was a jogger who was bitten by a dog while jogging on defendant’s land. The court determined that the private land was open for public recreation, and that the mechanism of injury did not have to be the land itself. Therefore, defendant was immune from liability.

Loss of an Animal

What’s the difference between a dead dog in the road and a dead lawyer in the road?
There are skid marks in front of the dog.

     A tricky question arises when a dog owner makes a claim for injury to or loss of their pet. Does a pet owner have a claim? And if so, what is the measure of the loss?

     The answer is that Oregon law provides for compensation to a dog owner for the loss of their pet, but there are limitations on what can and cannot be claimed. In short, a dog (like all domestic animals) is considered the personal property of its owner, and the laws relating to personal property apply.

     Therefore, if a dog is lost due to the negligence of another, the likely measure of damages will be the economic damages for veterinary bills or the fair market value of the animal. This only becomes a problem when the animal has an elevated market value due to breeding, training, or other special circumstance. It is important to remember that a dog is not a person, and is not, therefore, entitled to compensation for its own pain and suffering.

     “Loss of companionship” is not recognized in Oregon as a cause of action for the loss of a pet. The Oregon Supreme Court has also rejected a pet-owner’s claim for emotional distress following the loss of their animal, absent a showing that defendant’s actions breached a duty above and beyond the duty to avoid foreseeable risk See Lockett v. Hill, 182 Or App 377 (2002).

The Tail End

Knowing the boundaries of dog-bite liability will help all of us guard against attacks from the dog-bite lawyers, and bring them to heel. While packs of dog-bite lawyers still roam free in California, here in Oregon, their bark is worse than their bite.

For up-to-date statistics on jury verdicts in dog bite cases around the metro area, please click on the “Jury Verdicts” link. For more information about this topic, please feel welcome to contact the author at brian@lerlaw.com, or call (503) 768-9600.