John D. Winer, San Francisco

A. Who Can Sue in an Animal Bite/Attack Case?

Any person, whether a minor or an adult, who has been bitten or attacked by an animal who has been improperly leashed or contained can sue for injuries caused by an animal bite or attack. However, important insurance policy exclusions will apply to a household member who is bitten as a result of the negligent control of the animal by another household member.

In that situation, the other household member can still sue; however, it is unlikely that there will be insurance coverage to compensate the plaintiff for the injuries unless there is somebody other than the owner or possessor of the animal to sue.

The spouse of the injured plaintiff can also bring their own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

B. Who Is Liable to People Who Are Injured by Animal Bites?

i. Keeper or owner of the animal.

a. The dangerous animal rule applies to owners and possessors of animals.

A person who keeps or has control of an animal may be liable under the “dangerous animal rule” and for negligence for injuries and damages it causes.

For a person to be responsible under this rule, they need not be the owner. However, an owner who retains some control over the animal remains liable even if the animal is partly under the care of others.

b. Some laws impose liability only on the animal’s owner.

The dog bite statute, discussed below, and some local leash laws impose liability only on the animal’s owner.

ii. The “dog bite” statute.

The California Civil Code has a specific statute that states that the “owner of a dog is liable for the damages suffered by anyone who is bitten by the dog while in a public place or lawfully in a private place, including the dog owner’s property, regardless of the prior viciousness of the dog or the owner’s knowledge of that viciousness.” This is strict liability, a plaintiff does not have to prove negligence under such circumstances.

a. The “September 13, 2001og bite” statute applies in some circumstances even if there is no “bite.”

For the “dog bite” statute to apply, there does not need to be a “bite.” The bite does not have to break the victim’s skin or injure tissue and a dog’s jaws closed around a plaintiff’s leg causing the plaintiff to fall is sufficient.

b. Even though the “dog bite” statute applies only to owners, other people can be held responsible under “ordinary negligence” principle.

It is important to note that the dog bite statute applies only to the owner of the dog; however, other people in control of the dog can still be found negligent in their handling of the dog.

c. The dog bite statute applies whether or not the dog is restrained.

The dog bite statute imposes liability on the owner regardless of whether the dog is restrained or running loose when the bite occurs.

d. For strict liability of the dog bite statute to apply, plaintiff can’t be a trespasser.

The dog bite statute applies only to people who are lawfully on the owner’s property. These people include:

  • a person who has a duty imposed by the law to be on the owner’s property.
  • people who are on the owner’s property at the owner’s express or implied invitation. (An invitation from past occasions is sufficient.)

However, strict liability law will no longer apply if the victim has exceeded the scope of the invitation of the owner. In other words, an owner will not necessarily be found strictly liable to a person whom he invites into his or her livingroom who then, without the owner’s permission or knowledge, goes into the backyard.

Trespassers, even children, cannot invoke the strict liability law if they are injured as a result of dog bite.

iii. The dangerous animal rule.

a. Dangerous animal rule applies strict liability, and it is not limited to dogs, owners or bites.

The keeper of an animal of a species that is dangerous by nature, or that the keeper knows or has reason to know has dangerous propensities or traits, is strictly liable to anyone injured as a result of those propensities or traits. This rule applies to:

  • keepers other than owners.
  • owners.
  • animals other than dogs, including horses and cats.
  • animal actions other than biting.

b. Restraining dangerous animal may not be a defense.

The manner in which the dangerous animal is maintained does not usually provide a defense because liability is based on the dangerous propensities of the animal. A plaintiff who can prove the animal’s dangerous nature or trait and the keeper’s knowledge of it does not have to prove negligence in failing to restrain or confine it. However, at some point, the liability of the keeper is not absolute and the plaintiff can assume the risk of injury.

c. Applies to “attack” and “knock down” cases.

A dog, or other animal, may be dangerous if it has a propensity to attack or otherwise injure people by any means, not just biting. This is particularly important for “knock down” cases. However, the dangerous trait, with the exception of biting, must have been previously manifested.

d. “Trait” not “propensity” of animal to attack is the standard.

Any trait of a domestic animal that is likely to cause injury to anyone may render the animal dangerous even if it had no propensity to attack people.

e. When is knowledge of an animal’s dangerous traits important?

The keeper of a wild animal is presumed to know that it is ferocious by nature. In the case of domestic animals, a plaintiff must prove that the owner knew or should have known of the animals dangerousness by evidence other than the subject accident.

However, a dog’s dangerous character may be evidenced by its size or breed or by the fact that it was chained or muzzled or was trained to be used as a watch dog.

f. Effect of prior incidents.

If a plaintiff can establish previous incidents or accidents involving the animal, he or she will have successfully established notice and should win the case. The prior incidents do not have to have been precisely the same as the one causing the accident, as long as it showed the animal’s bad disposition.

C. Trespassing Animals.

With few exceptions, anyone who owns or has possession or control of livestock, is strictly liable for personal injuries and property damages caused by the animal’s trespassing on the property occupied by another. There is no need to show that the animal is dangerous.

D. Negligence of the Owner or Keeper of the Animal.

i. Negligence generally.

Up to this point, we have been discussing liability that stems from specific statutes, i.e., the dog bite statute and dangerous animal rule.

In addition, any owner or possessor of an animal may be found liable whether or not the animal is known to be vicious if the plaintiff can establish negligence.

Negligence may be based on the characteristics of an animal that, although not abnormal to its class, create a foreseeable risk of harm. The owner has a duty to anticipate harm from such characteristics and to exercise ordinary care to prevent it.

ii. Examples of cases in which animal owners have been found to be negligent.

Situations in which the keeper or owner of an animal may be found negligent include:

  • failure to warn of an animal’s dangerous trait.
  • failing to ascertain whether an animal has a dangerous propensity.
  • failing to restrain a dangerous animal.
  • failing to provide for or exercise control over an animal even if it had not previously manifested a dangerous trait.
  • engaging in conduct likely to excite the animal.

iii. Defendant won’t be found negligent if he or she had no notice of danger or animal adequately fenced in.

However, the owner is not negligent in failing to warn of an unknown danger of which he or she could not reasonably be expected to know and owners are not negligent in keeping dogs on their own property behind secured fences. (One case held that a dog owner is not responsible to a pedestrian who injured herself stepping off of a curb because she was frightened by caged dogs.)

E. Vaccinations.

Every dog owner has a duty to keep a dog vaccinated against rabies at four months of age and at prescribed intervals thereafter. A violation of the rabies law which causes an injury to another will give rise to a presumption of negligence.

F. Violation of Local Leash Laws.

If a plaintiff can establish a violation of a local leash law, it will give rise to a presumption of negligence.

An ordinance which imposes a positive duty on owners to prevent unleashed dogs from leaving the owner’s premises will be found to be violated if the owner fails to take the necessary preventative action whether or not the owner acted willfully in letting a dog run out of the house. This is considered negligence per se and creates a presumption of liability.

Violation of leash law may constitute actionable negligence if the dog interferes with:

  • vehicle operators.
  • a bicycle rider.
  • a pedestrian.

G. Responsibility of the Owner’s Employer for Negligence of the Employee in Controlling an Animal.

An employer is subject to liability for injuries caused by an animal kept by an employee if the employee uses the animal in the course of employment by the owner. The employer is not liable if the employee keeps the animal only as a pet.

 

However, a landowner ordinarily has no duty to warn a prospective occupant of the presence of a vicious dog in the neighborhood.

H. Liability of the Seller of the Animal.

A seller’s failure to warn of the dangerous nature or trait of an animal may subject the seller to liability, but the plaintiff must establish that the seller knew or should have known of the dangerous propensities of the animal.

I. Liability of a Business Owner That Permits Customers on the Premises with Dogs or Has His or Her Own Animals on the Premises.

The owner of a business establishment must use reasonable care to protect customers from harm caused by animals that the business owners have on the premises or permit customers to bring on the premises.

J. Special Rules Regarding Stable Keepers.

K. When stable keepers will be found liable.

Duties and liabilities of stable keepers include:

  • use of reasonable care to learn the habits and dispositions of the horses kept for hire.
  • impliedly warn that he or she has performed that duty and that the horse is safe and suitable for the particular rider.
  • and is liable for injuries caused by the dangerous or unsuitable nature or traits of a horse the keeper knew or should have known was dangerous or unsuitable.

ii. How a stable keeper may avoid liability.

A signed release or the plaintiff’s assumption of risk may prevent liability from being found on the stable keeper.

Further, a stable keeper may discharge its duty to provide a suitable horse by adequately warning the rider of the horse’s nature and habits and of the need of skillful handling.

iii. Duty to use appropriate saddles.

A stable keeper and stable employees must use reasonable care in saddling horses that are furnished to riders, and the saddle and other equipment must be safe for the foreseeable conditions which will be present during the ride.

iv. Duties of instructors and trainers.

Also, persons acting as coaches, instructors or trainers in connection with a sport or recreational activity owe a duty of ordinary care to their students. This includes instructors and trainers of horse riders.

However, the assumption of risk doctrine and release may prevent any liability from being found against stable, coach or instructor.

L. What If the Plaintiff Is Partially at Fault?

A plaintiff can recover even if he or she is also at fault. California is a comparative negligence State in which negligent plaintiffs can recover damages; however, their monetary recovery is reduced by the amount of their fault. For instance, if a court or jury finds that a plaintiff’s damages should be valued at a $1,000,000, but finds the plaintiff 25% at fault, his or her recovery would be reduced by $250,000 to $750,000.

M. Compensatory Damages in Animal Bite/Attack Cases.

In an animal bite/attack case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

N. Claim for Loss of Consortium.

A plaintiff’s spouse can also sue and recover damages for ‘loss of consortium.” A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse’s unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

O. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant’s misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

P. How Soon Must an Animal Bite/Attack Case Be Brought After the Bite or Attack?

Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

Q. Considerations in Evaluating Cases for Settlement.

i. Many different factors are taken into consideration when evaluating settlements.

There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:

ii. Liability.

The clarity of liability (i.e., fault) in the case is a critical settlement factor.

In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff’s chances of losing.

Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company’s $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.

iii. Comparative fault of the plaintiff.

If a plaintiff is found to be partially at fault for causing his or her own injury, then their potential jury award is reduced on the basis of their percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff’s verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.

iv. Likely jury verdict value of the case.

In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.

Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in “jury sheets” that lawyers read and utilize when attempting to assess the value of any particular case.

v. Aggravated liability.

In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to “spike” their verdict and award more money for a plaintiff’s injury than they would if a defendant’s misconduct was merely negligent.

Aggravated liability situations, such as a defendant who was found to be driving drunk or a defendant who intentionally hurts a plaintiff will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.

vi. Punitive damage exposure.

If the defendant’s misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.

vii. The character and credibility of the parties.

A plaintiff’s case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don’t believe.

To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.

viii. The extent of the injury.

Theoretically, the more serious an injury, the greater should be the value of the plaintiff’s case.

ix. Objective evidence of injury.

Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.

There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.

However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.

x. Past and future medical bills of the plaintiff.

As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.

However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.

xi. Past wage loss and future wage loss.

Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that he or she was reasonably off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.

Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.

xii. Is the injury permanent.

In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.

xiii. Venue (where the claim will be tried).

It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.

xiv. Policy limits and defendant’s assets.

No matter how severe the injury, the plaintiff’s ability to recover damages against defendant will be limited by either the defendant’s policy limits or the personal assets of the defendant.

However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff’s injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.

xv. Target defendants.

Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.

xvi. Reputation and ability of attorneys.

The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff’s attorney and the likelihood that the attorney will try a case and try it well.

In situations in which the defense believes that the plaintiff’s attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.

On the other hand, if the defense believes that a plaintiff’s attorney will not only go to trial, but will receive an optimum verdict, the defense’s risk is increased and thus the settlement value of the case is increased.

By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.

xvii. Expense of litigation.

The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.

Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.

However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.

Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.

Pain and suffering is typically the most significant element of a plaintiff’s damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

This article was authored by John D. Winer. Winer, McKenna, Burritt & Tillis LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.