MAN'S BEST FRIEND.....MOST OF THE TIME
We at Margrave Celmins have plenty of canine family members that faithfully wait for us at home. No matter how tough our day at work, we know we can expect a wagging tail, a lick on the face and plenty of affection once home. They are Gracie, Bazil, Tommy, Jasmine, Samantha, Cobie, Lily, Max, Kaya, Roxie, Casey, Greta, Dingo, Shotzie, Cooper and Kal. This article was written by a dog-friendly attorney in a dog-friendly firm.
On The Receiving End
On occasion, Manâ€™s Best Friend can become another manâ€™s nightmare. You are out for a walk in your neighborhood when you are charged by a dog. All you can see is a set of sharp teeth coming at you. He sinks his teeth into your leg, knocks you down and bites you again on your face. After a trip to the emergency room to get stitched up and a few follow-up visits with your doctor, your wounds have healed. Nevertheless, you are left with permanent scars to your face and leg.
You donâ€™t know if this dog had a propensity for viciousness or whether it had a friendly disposition. As far as A.R.S. Section 11-1025 is concerned, it doesnâ€™t matter. According to this statute, the owner of a biting dog is strictly liable for the victimâ€™s injuries regardless of whether the dog had an aggressive history. Thus, no dog gets "one free bite" in Arizona pursuant to this statute.
The liability of an owner extends to a victim who is bitten while in a public place or even on private property, including on the ownerâ€™s property, so long as the victim is there lawfully. Clearly, the owner is responsible when you are attacked while out for a walk on a public street. Likewise, if you are invited onto the ownerâ€™s property or you are performing your duties as a postal worker or other delivery person, the owner is strictly liable for the biting actions of his dog.
A child, bitten by his neighborâ€™s dog after climbing a fence to enter the neighborâ€™s yard to retrieve a ball, was considered a trespasser and, therefore, not entitled to successfully employ this strict liability statute. Hartsock v. Bandhouer, 158 Ariz. 591 (1988). In a different factual scenario, a groomer, bitten while working in a pet hospital, was considered to be lawfully in a private place and able to take advantage of the statute. Mulcahy v. Damron, 169 Ariz. 11 (1991).
The sole defense to a strict liability dog bite action is when the victim provoked the dog (A.R.S. Section 11-1027). Provocation might include teasing the dog, taking his toy or food away, hitting or reprimanding him, or unlawfully entering property which confines the dog. In an unreported appellate case handled by me in 1987, the Appellate Court upheld the trial courtâ€™s determination that a young child â€œgoing face-to-face and eye-to-eyeâ€ with a dog constituted provocation.
There is a one-year statute of limitations to pursue this strict liability action. If your lawsuit is filed after the one-year deadline but before two years, you must then show that the dog had a propensity for viciousness and that the owner knew about such propensity or should have known about it. Clearly, it is much safer to file suit before the one-year deadline as the victimâ€™s burden of proof is much easier to meet.
Now letâ€™s get back to the injuries you sustained. Your hospital bill wasnâ€™t terribly expensive and your health insurance took care of most of it. You figure your case canâ€™t be worth very much because you had minimal medical treatment. Take a look in the mirror and check out that scar on your face. Also take a look at that ugly jagged scar on your leg next time you decide to wear a pair of shorts. The attorneys at Margrave Celmins work closely with plastic surgeons who consult with our clients and provide valuable narrative reports detailing corrective surgeries and the cost thereof. These reports are worth their weight in gold in your dealings with insurance adjusters, arbitrators and jurors, regardless of whether you get the recommended treatment or not. All of a sudden, you realize that your damages are in fact rather significant.
On The Giving End
Say your dog has never bitten anyone. She is sweet and playful, but just happened to get a little overzealous with your neighbor. Again, it doesnâ€™t matter, so long your neighbor is on public property or legally on private property and didnâ€™t provoke your dog. Now what?
Most likely Animal Control will investigate the incident, make sure your dogâ€™s rabies shots are up to date and, if necessary, quarantine your dog. Now itâ€™s time to contact your homeowners insurance carrier. You tell them that your pet, a Rottweiler, bit your neighbor. They review your policy and read a clause to you that states, â€œWe will not indemnify you for any injuries to property or person inflicted by a Chow, Akita, Doberman, Pitbull, Staffordshire Bull Terrier, Rottweiler, Presa Canarios, Wolf Hybrid or any mix of these.â€ You are shocked to realize that you will be paying your neighborâ€™s substantial personal injury settlement out of your own pocket. (Information on excluded dog breeds supplied by Jason Arriaga of Arriaga Advisors in Scottsdale, AZ.)
These days, more and more homeowner policies are including exclusions of coverage for one or more of the above-referenced breeds. There are still many policies, however, that have no such exclusions but do either cancel or rate coverage after your dogâ€™s first aggressive incident. Check your policy language now before itâ€™s too late. And keep Rover under control in public and in the privacy of your home.
Richard K. DePonte