A plaintiff-friendly statute makes liability against the dog’s owner relatively easy to establish — so long as the plaintiff was not trespassing or provoking the animal at the time of the injury.
Damages, however, can be another matter. Jurors — many of whom may be dog owners themselves — may be reluctant to recognize emotional trauma and other nonphysical damages.
“I think jurors are uncomfortable with the strict liability that owners have under the statute,” said William Jepsen, a Minneapolis personal injury attorney. Nevertheless, this hurdle can be overcome, as evidenced by the fact that Jepsen was recently able to procure for a child a $275,000 structured settlement in a dog-bite case in Washington County.
The number of dog-bite cases is growing. Dog-bite claims rose by 36 percent nationally between 1994 and 1996, and continue to rise as more victims seek, and win, damages, according to statistics kept by State Farm Insurance Company. In fact, 28 percent of State Farm’s liability payouts in 1995 were for dog bites.
More than 4.7 million people are bit by dogs in the United States each year, according to the American Society of Plastic and Reconstructive Surgeons (ASPRS) and the Independent Insurance Agents of America (IIAA). Of those, more than 800,000 require medical treatment. In fact, dog bites account for more emergency room visits than do skateboards, in-line skates, baby walkers and all-terrain vehicles combined. About 18 people die each year from dog bites. Children are especially at risk — most victims of severe dog-bite injuries are under the age of 10.
Dog owners in Minnesota need to be responsible and control their pets at all times.
Minn. Stat. sec. 347.22 reads: “If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.”
Dog owners are therefore liable unless they can show that the victim somehow provoked her own injuries or had no business being in the vicinity of the dog in the first place. Neither common law affirmative defenses nor comparative negligence relieve the dog owner of liability. Moreover, it makes no difference that the dog owner may have used reasonable care; negligence is irrelevant, and the past good behavior of the dog is immaterial.
Jepsen said that lawyers should prepare to refute the defendant’s defense of provocation in dog-bite cases because the finding has a large effect on the ultimate damage award.
“The owner of an animal has the defense of provocation, but people disagree as to what provocation means, especially because there is no definition in the statute,” said Jepsen. “Is it provocation when a child reaches over a fence to pet a dog? Some people would say yes and others no,” Jepsen explained.
In the 1989 decision of Grams v. Howard’s O.K. Hardware Co., the Minnesota Court of Appeals said that the provocation defense does not extend to inadvertent, involuntary conduct. Therefore, even if the dog was provoked, the victim can recover as long as she can prove that the provocation was inadvertent or involuntary.
Paul Downes, a St. Louis Park personal injury attorney who has handled several dog-bite cases, said that the defense of provocation has not been raised all that often in his experience, but stressed that even when it is, it is not an absolute defense.
“It depends on the facts,” said Downes. “The defendant may still be liable even if the issue of provocation is decided adversely to the plaintiff. For example, the plaintiff could have clearly provoked the dog at one time, and then been attacked at a completely separate time or place.”
Downes also noted that defendants occasionally try to escape liability by arguing that the plaintiff had no right to be on the premises where the attack occurred.
Downes suggested that plaintiffs’ attorneys look carefully at the validity of the defenses of provocation and right to be on the premises when first approaching the issue of liability.
Attorney John F. Eisberg of Minneapolis successfully refuted both of these defenses in a 1994 dog-attack case. In that case, a three-year-old boy who was attacked by a Canadian Eskimo dog owned by International Polar Expeditions obtained a verdict of $725,000. The boy suffered substantial injuries, including a severed nerve that resulted in facial paralysis. The court granted the plaintiff’s motion for summary judgment on the issue of liability based on the dog-owner liability statute, even though the defendant contended both that the plaintiff provoked the dog into attacking and was not in a place where he could lawfully be.
The boy’s father worked for the defendant corporation, and the boy was visiting him there. The defendant argued that the father was negligent because he went into a woodshed for a brief period and left the boy unattended. The boy then wandered into the area where the dog was kept, and may have teased the dog.
Despite these defenses, Eisberg believed that the plaintiff had a strong liability case, in part because discovery established that the dog had dangerous propensities and was part wolf. Since the plaintiff brought up the prior violent history of the dog, he was able to show that even if the boy had provoked the dog, the defendant was still liable.
Liability without a bite
Downes pointed out the language of the dog-bite statute allows plaintiffs to recover even when no actual physical contact has occurred — so long as the dog was the cause of the injury.
“The statute doesn’t mention a need for physical contact, just ‘attack’ or ‘injure,’” he explained.
In the 1992 case of Morris v. Weatherly, the Minnesota Court of Appeals held that no physical contact between the dog and the victim is required — the dog owner is absolutely liable for the direct and immediate results of the dog’s actions, whether hostile or nonhostile.
In Morris, the victim was riding his bike when a collie “running low to the ground” and with “his ears laid back” charged at him. The dog ultimately stopped and walked away before any physical contact occurred, but the dog’s actions caused the victim to injure his leg as he attempted to avoid the attack. The court said that the dog’s “aggressive attacking pursuit” proximately caused the man’s injuries and that the dog owner was absolutely liable for the damages, even though the dog never touched the man.
In noncontact cases, liability will almost always be contested, noted Downes, adding that the plaintiff must prove that the actions of the dog actually and proximately caused the injury. The defendant will not be liable for the full extent of the damages if the defendant can show that an intermediate event actually caused the injury.
More plaintiffs are bringing noncontact claims, and winning, said Downes. While the plaintiff’s attorney can’t change the facts, if the dog caused the injury the owner will be found liable, he said.
Beyond Physical Injury
Oftentimes, the defendant in a dog-bite case will admit liability and the only issue before the court will be damages, practitioners said.
Jepsen’s recent $275,000 structured settlement involved a young girl who was visiting at a relative’s house when the relative’s dog jumped out from in between two cars and bit her on the face, severely disfiguring her.
Reaching a consensus as to proper compensation was difficult because the injury, like most dog bite injuries, seemed primarily cosmetic, Jepsen said.
Although most people would agree that the victim of a dog bite should be compensated for her quantifiable medical expenses, the value people place on appearance varies widely. When a dog bite leads to permanent scarring, it is the lawyer’s job to communicate to the jury the effect that the injuries will have on the victim and see to it that she is fully compensated, Jepsen stated.
Jepsen believes it is essential that the plaintiff “preserve” the way the injury appeared at various stages of the healing process. Photos should be taken so the jury can understand how the victim looked before the attack, directly after the attack occurred, a few weeks later, a few months later, and so on, he advised.
The lawyer’s job is to make people understand the reality that any type of disfigurement goes far beyond appearance, added Jepsen. People who have severe disfigurements not only suffer the physical pain of their injuries, he noted.
“Disfigurement, especially facial disfigurement, can have an impact emotionally and economically in terms of job promotion,” said Jepsen. When arriving at a settlement or verdict, future emotional and economic consequences must be taken into account, he added.
Dog-bite victims go through a lot of physical and psychological pain, noted Downes, and sometimes the process of a full-blown trial can further traumatize the victim. He advocates the use of arbitration, especially when very small children are involved, in order to spare victims the additional stress of going through a trial.
“Arbitration is less intimidating,” he reasoned.
“[Dog-bite] cases can be real troubling because of the psychological component,” said Downes, “even more so than car accidents because of the actual contact involved.” Seeing the bite occur can leave lasting scars, both physical and emotional, he added. In a car accident, it just happens, he noted, but when a dog charges and attacks, it seems personal.
In 1997, Downes used arbitration to procure a $165,000 structured settlement for a 3-year-old girl who had been attacked by an unleashed German Shepherd. The little girl was visiting her grandmother when the dog charged and bit her in the face. She suffered significant scarring and required extensive plastic surgery.
Downes said that the little girl has healed well under the circumstances, but even though several years have passed, she still has noticeable facial scarring.
Downes believes that the psychological damage will take even longer to heal. The girl suffers from nightmares and is very afraid of dogs, said Downes. Her fear has extended to other types of animals as well, and she has difficulty walking down the street because of her fears, he said. Moreover, her scars will forever remind her of the horrifying incident, he added.
Downes noted that some dog-bite victims react to the emotional scarring by becoming more aggressive. They not only suffer from nightmares, they also become very physical and act out, he said.
Plaintiffs’ attorneys need to communicate to the jury that victims of dog attacks need to be compensated for those types of consequences as well, Downes stated. In addition, he continued, lawyers should be especially sensitive to the emotions of their young clients when conducting a trial in order to minimize the additional trauma they feel.
Almost everyone can sympathize with the physical pain of a dog bite, but not everyone understands the mental anguish that comes along with disfigurement, or the discrimination that victims suffer daily in the workplace. Even fewer are able to quantify the amount of damages involved. So how can lawyers explain to the jury, or even to the defendant, the extent of the emotional and economic damage that victims of severe dog bites experience?
Evidence of psychological damage usually is best presented through family members, said Downes. Parents, siblings, or other people close to the victim can testify as to how the dog bite has affected the victim, and how the psychological scars will affect her for the rest of her life, he explained.
Jepsen suggested presenting literature to explain how society reacts to and treats people with disfiguring scars.
“People avoid [victims of disfigurement]. They don’t want to have to work face-to-face with them,” said Jepsen. The literature is helpful to legitimize the severity of the discrimination that victims of disfigurement face long after the physical pain has diminished, he said. It is important that the jury understands that the victim is not simply whining — people with disfiguring scars suffer emotionally and economically, he added.
Downes emphasizes the economic effects of disfigurement.
“There are hard statistics that show that people with facial disfigurement are basically discriminated against in the employment field,” said Downes. Such statistics and scientific studies are very useful in explaining the true extent of a victim’s injuries, he added. Disfigurement can greatly lessen one’s earning capacity, and the victim should be compensated for that loss, he explained.
Downes noted that with children, it is difficult to make a claim regarding earning capacity because the damages would be quite speculative. But the potential for economic damage is very real and, especially when the victim of the dog bite was a wage earner, should be explained, he said.
Eisberg agreed, noting that one element of damages in the $725,000 case was the 3-year-old plaintiff’s future loss of earning capacity in light of his facial paralysis.
Jepsen also suggests supplementing general statistical evidence with personalized expert testimony.
It is vital that the jury really feels for the victim and understands her injuries, he said. A psychologist who has spent time with the victim can explain with specificity the types of unique emotional and economic problems she would likely face during her lifetime as a result of her dog-bite injuries, he added.
— Alice Sherren Brommer