The most common occurrence of dog-on-dog attacks involves dogs of different sizes. These incidents are reported more frequently because of the immense damage that can result. While smaller dogs certainly may instigate the battle, it is usually the larger dog who wins and gets blamed. The irony is that the prize for winning is usually a restraint on the dog’s freedom and a payout to the loser of the fight. These big dog–little dog encounters have their own category. According to an article published by Tufts University Cummings School of Veterinary Medicine, “There are no numbers for how often big dogs attack little ones, but it’s a common enough scenario that veterinarians even have an acronym for it, BDLD, which means Big Dog Little Dog. It not infrequently enough turns into a very, very serious emergency medical situation.”
In this article, we provide a road map of considerations that arise in cases involving dog-on-dog attacks. When dogs attack, there are parallel paths that can be taken to hold the dog and its owner accountable. Municipalities can hold a hearing to determine if the attacking dog is dangerous and what remedies, safeguards, and punishments should be ordered. There are often contemporaneous civil court actions for financial compensation. Generally, the result of litigation, if liability is proven, is the recovery of the costs of veterinary care and perhaps the cost of a new dog. (Boston Dog Lawyers has created a formula for the replacement value of a dog, which bypasses the concept of depreciation, a theory still persistently invoked by insurance claims adjusters.) Dog owners are still universally denied compensation for their emotional trauma or loss of companionship.
Statutory Liability
When dogs attack other dogs, pet owners should first look to their state’s dog bite statute for guidance on how liability is determined. There are generally four types of state statutes used: (1) strict liability, (2) negligence, (3) assumption of the risk, and (4) the common law “one-bite” rule.
Strict Liability
Many states have adopted a version of a strict liability dog bite statute. A strict liability state will deem the owner or keeper responsible for whatever damage their dog causes to another person or their personal property, including a dog. Any negligence on behalf of either party and any prior bite history is irrelevant in the liability assessment. These statutes make it much simpler for plaintiffs to be compensated if the victim dog and owner did not tease, provoke, trespass, or commit some other tort. Often, the plaintiff is required to affirmatively state in the complaint that when the injury or damage happened, they were not teasing, tormenting, or trespassing. These limited defenses for the owner of the alleged aggressor dog require a view of the situation from the attacking dog’s perspective, at times, and require expert testimony. The lack of precedent and the difficulty of proving the defenses means the odds against successful litigation are low for the defending attorneys. Most lawyers representing insurance companies have no playbook for handling these and work simply to drive down the cost of the loss. Awards can also include behavioral training for the dog who was attacked, as he or she may now be more timid, anxious, or aggressive.
Negligence
Negligence statutes look to assess liability based on the actions of the owner, whereas strict liability statutes focus on the actions of the dog. Dog owners are assessed through the negligence prongs of duty, breach, causation, and harm. Did the owner know about a history of aggression toward other dogs? Did the dog slip out of an improperly gated yard? Was there a duty to warn or to muzzle? Typically, negligence statutes assess the role of the victim dog and its owner as well. In states recognizing contributory negligence, the plaintiff may be unable to collect any monetary damages if they acted in any way that led to the cause of the injury. Alabama, North Carolina, Virginia, and the District of Columbia use this model.
Under comparative negligence, plaintiffs can recover for harm to their pets, but such awards can be reduced by the percentage of fault apportioned to them. For instance, if their own dog got loose, was unleashed, or ran onto the property of the attacking dog, they are partly to blame. These negligence theories can be subdivided again into states recognizing pure comparative negligence, where the plaintiff can only recover the percent amount that they were not at fault, versus modified comparative negligence, where a plaintiff can only recover if they were less than 50 percent at fault. Knowing the plaintiff’s contribution to the injuries is a useful tool for the defendant in negotiating a settlement.
Assumption of the Risk
Certain plaintiffs may have a hard time obtaining a favorable judgment for an injury from a defendant’s dog because, by the nature of their occupation, they have assumed the risk of potential injury. Although this theory of liability typically only applies to veterinarians, veterinary technicians, or other animal professionals who have received training on dog behavior, it is worth noting as a source of protection for pet owners. For example, a Georgia court found that there is a “general doctrine of assumption of risk by workers in certain professions[, . . . and] there is no duty to give warning to the members of a profession against generally known risks in that profession” (Griffiths v. Schafer, 478 S.E.2d 625, 625 (1996)). This doctrine shields pet owners from liability for unexpected bites that happen in situations where the animal is stressed and fearful, such as in a veterinarian’s office.
The “One-Bite” Rule
Unlike the above-mentioned theories of liability, the one-bite rule is a common law theory rather than a statutory one. The one-bite rule is premised on the idea that every dog is allowed one first “free” bite before a dog owner is held liable for any damage. In other words, if the owner did not know that their dog had any tendency to bite or other behavioral indications of aggression, then they may not be held liable for that particular instance. However, once the dog owner knows or has reason to know that their dog is likely to attack, the dog and its owner lose this protection. Very few states still rely on this rule.
Defenses to Consider
In addition to legal defenses, knowing why a dog behaved in a certain manner is useful when trying to defend the dog’s actions. Being able to refute testimony that a dog is dangerous because it barked, growled, or lunged can be effective in re-centering the hearing authority on what its job is. A dog who issues these warnings before attacking is preferred. Other dogs might send a simple message with their teeth and retreat. The problem dogs are the ones who do more than send a message—they repeatedly attack. Those dogs are more difficult to defend and need to be strongly evaluated prior to advocating for them to remain in place.
In defending Coco, a golden retriever, and his owner in a dangerous dog hearing and in civil court, we learned that the victim dog, a Jack Russell terrier, was off leash when he charged Coco. This was a BDLD event, with Coco the victor. Under most dog bite statutes, Coco is allowed to defend himself, and the owner of the victim dog would have some explaining to do as she sought full reimbursement of her $9,000 veterinary bill. Her dog certainly provoked Coco, and her failure to follow local (leash) regulations is tantamount to committing a tort.
Identifying which defenses apply in a dog-on-dog case involves knowing the history of both dogs. A public records request can often be a good source of information. Researching case law is also important for learning how the jurisdiction views the available damages when harm is caused to a pet. Do the courts allow for greater damages if the injured dog was a service or support animal?
Most jurisdictions make a distinction between the owner of a dog and the keeper of a dog. For instance, a dog walker or boarding facility can be held liable for a dog attack while they were the keeper of the animal, while the owner, who was not present, can also be sued. In Massachusetts, a plaintiff ultimately has to make an election as to whom to sue, the owner or the keeper. Before making an election, a lawyer should first determine if there is homeowner’s coverage or rental or business insurance to seek out. Case law tends to define keepership. In Massachusetts, keepership involves “harboring with an assumption of custody, management and control of the dog” (Maillet v. Mininno, 266 Mass. 86 (1929); Salisbury v. Ferioli, 49 Mass. App. Ct. 485 (2000)). In Ohio, the definition is subject to more interpretation, “One thing that is clear to this court is that there is no ironclad definition of the term keeper” (Garrard v. McComas, 5 Ohio App. 3d 179, 182 (1982)).
In cases involving a car, another available option for plaintiff and defense attorneys is to look to the auto insurer for coverage. There typically needs to be a nexus between the presence and the purpose of the dog being in the car. A car being used to transport the dog, as opposed to merely taking him along to do errands, can trigger the insurance. Boston Dog Lawyers was defending the aggressor dog, Athena, a German shepherd, after it attacked another dog. Athena had been alone in the vehicle while it was warming up in the driveway when she spotted a dog with whom she had an aggressive history. She was then able to paw the down button to lower the window and leaped out and attacked. The auto insurer denied coverage after six months of careful consideration.
Consequences for the Dog
Post-attack, the owner of the aggressor dog will naturally have a great deal of anxiety about what might happen to their beloved companion. Most states employ a mechanism through which an animal control officer or the owner of the victim dog can be heard about what should happen to the allegedly dangerous or vicious dog. At these local hearings, authorities can order everything from dismissal to permanent muzzle restraints, the building of a kennel or appropriate fence, neutering, or euthanasia. These orders tend to follow the dog throughout the state in which the order was made. Remedial measures can be expensive and can involve ongoing attendance at a training facility.
Some states, such as New Hampshire, consider a hearing regarding a dangerous dog to be a criminal matter. In California, a dog can be labeled potentially dangerous if it, “when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog” (Cal. Food & Agric. Code § 31602). In Massachusetts and other states, the hearing authority can also order the dog owner to obtain liability insurance against future risks, and there are now stand-alone insurance policies for dog bite liability.
Just a few decades ago, dogs roamed the streets without collars, name tags, leashes, licenses, microchips, or warm coats. Today’s dogs now have electronic leashes, liability insurance, and lawyers! Modern pet owners invest significantly in their pets and seek compensation and punishment when bad things happen to them. Private and public dog parks and dining rooms are opening up because pet owners feel compelled to socialize their dogs. This has accelerated the number of dog-on-dog interactions that go awry. Animal control officers and the courts are being tested to handle these issues through modern lenses. This includes providing dogs with access to better tools, equipment, training, and medicine to rehabilitate them if they attack. Invoices for veterinary care have certainly been modernized to capitalize on the value we pet owners place on our dogs. Legislators, insurers, and judges remain hesitant to open the gate to allow pet owners to recover non-economic damages for harm caused to their pets. This lack of a financial incentive has deterred most lawyers from entering the field. Sometimes, though, dusting off old case law, petting a dog client, and viewing incidents for what really happened rather than what hyperbole says happened can be the best part of being a dog lawyer.
