IT’S A DOG’S LIFE
Dogs have been man’s best friend for something over 10,000 years, but that doesn’t mean the law does not have a healthy respect for the mischief our canine brothers and sisters can cause. Usually the mischief results from a dog just being a dog. Occasionally, it’s tragic, like yesterday’s headline about a man shooting his neighbor over dog droppings. Common law was rather comme ci, comme ça about the hounds. The “one bite” rule ruled the day throughout the 19th century, holding that an owner or keeper of a dog would be held legally liable for damages caused by the animal only if it could be shown that the animal had a propensity to do something harmful which was unusual for the animal’s class (such as biting people, scratching them or knocking them down) and the owner or keeper knew about the dangerous propensity prior to the incident in question.
As society became more urban and orderly, a number of states imposed strict liability on dog owners. If Fido bit, you were hit. In so doing, states treated domestic animals the same as inherently dangerous situations for which res ipse loquitur applied.
Res ipse loquitur is a great doctrine. Meaning literally “the thing speaks for itself,” res ipse loquitur acknowledged that some conditions – like keeping a wild animal, storing explosives in a residence in town, or cutting down a tall tree in the middle of a neighborhood – were so inherently dangerous (or “fraught,” in today’s overused vernacular) that any damage that resulted from the act was assumed to be the fault of the person engaged in the act no matter how careful he or she was. Typically, res ipse loquitur requires a showing that the accident is of a kind that doesn’t normally occur unless someone has acted negligently; the evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and the type of negligence in question falls within the scope of the defendant’s duty to the plaintiff.
Dog bite laws are actually even worse for the owner than the classic res ipse loquitur situation. After all, you might get bitten only because you pulled a gun on the dog, or kicked the mutt, or something like that. No matter: strict liability says that the dog and his or her owner are at fault.
Today’s case is an excellent example of what usually happens. Latasha Maupin was squirrel hunting with her boyfriend out in the woods when she cut across Roland Tankersley’s land, on a path she had long used with the Tankersley clan’s permission.
A Samaritan motorcyclist riding on a nearby road saw the attack and dragged Latisha to safety. She recovered enough to sue Roland Tankersley, relying on state law. Roland said she had to prove he either knew Latisha would be cutting across his land or be aware that the mutts were dangerous. Latisha, taking the modern view, argued that Roland owned the dogs, and that was enough.
The jury found that Roland was the owner of the dogs, but he had had no idea Latisha would be near his dogs that day or that he had failed to exercise ordinary care to control his dogs for the safety of others. The core legal issue – whether strict liability was the state of the modern law – ended up in the Kentucky Supreme Court.
Maupin v. Tankersley, Case No. 2016-SC-000572-DG (Sup.Ct. Kentucky, Feb. 18, 2018). Latasha Maupin was squirrel hunting with her boyfriend on heavily wooded property owned by his family. She decided to go home early, and cut across Roland Tankersley’s 42-acre tract, using a path she and her family had used with permission for years. Near where the path met the road, a pack of Roland’s dogs attacked her, causing substantial injury. Latisha sued Roland for her injuries, relying on KRS 258.235(4).
The trial court, however, instructed the jury that Latisha had to show that Roland knew that Latisha was likely to be crossing his land and to come into contact with his dogs, or failed to exercise ordinary care to control his dogs for the safety of others. Latisha howled that this was wrong, and the mere fact that the dogs belong to Roland was enough to make him pay.
Latisha lost the appeal as well, but she was dogged in her determination. The case ended up at the Kentucky Supreme Court.
Held: The General Assembly’s intent in passing the dog bite statute was clear: to mandate that dog owners are strictly responsible for injuries caused by their dogs.
The statute simply held that “any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.” The Court interpreted the statute by giving its words “common and ordinary meaning, unless they are technical terms,” and it “liberally construe[s] our reading of a statute with the goal of achieving the legislative intent of the General Assembly regarding the statute’s purpose.” Here, the Court said, under the rules of statutory construction, “shall” is mandatory language and there is “no legal distinction between the words “liable” and “responsible.”
The Court observed that a major concern driving the General Assembly to adopt the dog bite law was the protection of livestock as well as people. The historical emphasis has been on the agrarian interest in the protection of farm animals.
But Latisha was not the only lucky dog in the case. While Roland was liable to her simply by dint of ownership, the Court said that Latisha’s comparative negligence “may be considered in measuring the damages awarded to her.” Kentucky’s comparative fault statute requires the trier of fact in “all tort actions” to “consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed” when determining the percentage of the total fault properly attributed to the parties.
Thus, the Court said, “it is appropriate for the jury, during the calculation of damages phase, to lessen the liable owner’s monetary responsibility for the victim’s injuries if the facts demonstrate that the victim’s own negligent or intentional acts contributed to the dog attack’s occurrence.” Citing the agrarian concerns that underlay the adoption of the law, the Court observed that “it would be incredulous to believe that the General Assembly intended for the owner of trespassing cattle, who break out of a neighboring pasture and enter the dog owner’s land, to be fully compensated for damages inflicted by the homestanding dog upon the intruding livestock.”
– Tom Root