DOG BITES MAN
A little neighbor law today: Dog bites are big business in the United States. They happen all the time, which is why “Dog Bites Man” and its obverse are the archetypical predictable or unpredictable newspaper headlines. Man’s best friend sinks canine fretwork into a human over 3.5 million times a year. Insurance payouts for dog bites exceed $1 billion a year (or, by comparison, 10 million barrels of oil at $100 a barrel). Some dog attacks can be fatal. Many more are just plain ugly.
Today’s case is one of those ugly ones, a sweet little 3-year old girl attacked without provocation by her cousin’s pit bull. Our focus today is on the denouement, as the Delaware court apportions the financial blame for the accident. Not that it much matters – the defendants didn’t bother to put on a case, which suggests that neither little Destiny nor her mother will ever collect a dime.
Still, it’s a reminder that (1) just about every state regulates the liability a dog owner has for the bites inflicted by Fido, and most of those statutes impose liability without any proof of negligence; (2) permitting a default judgment to be entered against you is a very bad idea; and (3) the concept of “joint and several” liability means that a plaintiff can collect it equally from several defendants, or all from one and none from the other.
Campbell v. Robinson, 2007 Del. Super. LEXIS 563, 2007 WL 1765558 (Del.Super.Ct., June 19, 2007). Young Destiny Campbell was attacked by a dog kept by Frances and Turquoise Robinson. The attack caused severe injuries, including the removal of Destiny’s right ear and a significant portion of her scalp, and created long-term physical and mental health consequences. Her mother, Alicia Campbell experienced emotional distress after witnessing the attack.
Alicia sued on behalf of her daughter, complaining that as the owner of the dog, Turquoise was liable under Del. Code Ann. Title 16, § 3053F, which imposes liability upon owners for injuries caused by their dogs. Additionally, she claimed that Turquoise was negligent in maintaining a dog she knew to be vicious and in failing to warn those on the premises of the dog’s vicious nature and that Frances Robinson was liable for housing and maintaining a dog known to be vicious and dangerous, for failure to warn, and for failure to protect those who entered the premises.
The Robinsons apparently decided to let sleeping dogs lie, and failed to answer the complaint. The trial court granted default judgment against both defendants and set a hearing to consider damages. The Robinsons showed up for that one but did not testify. That probably wasn’t such a good idea, because the trial court entered a judgment of $750,000 for compensatory damages against Turquoise Robinson, an award that no doubt left Turquoise feeling blue.
Based on the fact that the plaintiff alleged violation of the dog bite statute, the trial court reasoned that Frances Robinson could not be liable to Destiny Campbell because she didn’t own the dog. The trial court apportioned $20,000 damages apiece against Turquoise and Frances for emotional distress caused to Alicia Campbell.
Alicia appealed, complaining that the trial court should have made Frances liable for the $750,000 as well.
Held: The Court agreed that the $750,000 must be apportioned equally between the Robinsons. Delaware has long recognized that “when the negligent acts of two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, though there was no common duty, common design, or concerted action.” The joint and several liability of two codefendants, the Court said, entitled a plaintiff to seek recovery from either or both of the defendants, provided that total recovery does not exceed the full amount of damages. At the election of the plaintiff, either defendant may be held individually liable for the entire judgment.
A default judgment constitutes a final judgment that provides a determination of the merits of a case, and — the Court noted — a defaulting party admits all of the allegations contained in a complaint. Here, the Court said, its entry of default judgment established that both Robinsons were joint tortfeasors and were jointly and severally liable for all damages arising from both of the claims contained in the Plaintiffs’ complaint. The allegations in the complaint supported joint and several liability, charging wanton and negligent acts by the Robinsons, which combined to proximately cause harm to Destiny and her mother in a manner not “divisible” or separately attributable to either defendant.
The Court held that the fact that Count I of the complaint was labeled “Count I-Violation of 16 Del.C. §3053F” does not permit Frances to evade joint and several liability to Destiny Campbell. While she was not the dog’s owner and was not liable under the dog bite statute, Count I nevertheless established negligent and wanton conduct unrelated to the dog bite statute, and made Frances equally liable.
– Tom Root