When Man’s Best Friend Bites
National trends and implications for dog owners and insurers on strict liability, breed bans, insurance mandates, and exclusions.
"Boys Arrested in Pit Bull Attack.” “Baby Killed by Pit Bull.” “Death Row Dog Denied Clemency.” “Blind Girl Reunited with Stolen Pit Bull Therapy Dog.” “Pit Bulls Used as Service Dogs for Wounded Veterans.” These seemingly irreconcilable headlines reflect the long-standing controversy about pit bulls in the U.S.
America’s love affair with animals is growing. According to the American Pet Products Association 2011-2012 National Pet Owners Survey, there are approximately 78.2 million dogs owned in the U.S., with 39 percent of U.S. households owning at least one dog. While dog ownership is on the rise, there is a growing tension about the costs and risks associated with their behavior.
In 2009, the Centers for Disease Control and Prevention (CDC) estimated that 4.5 million people are bitten by dogs every year. Almost one in five of those who are bitten require medical attention. In 2006, the CDC estimated that more than 31,000 people underwent reconstructive surgery as a result of being bitten by dogs.
What are the costs of these injuries? According to the Insurance Information Institute, there were 16,292 dog bite claims in 2011, with an average claims cost of $26,396. Dog bites reportedly accounted for more than one-third of homeowners’ insurance liability claims dollars paid out in 2011, costing nearly $479 million. The largest writer of homeowners’ insurance in the U.S. reportedly paid out more than $109 million as a result of its nearly 3,800 dog bite claims in 2011.
Some studies purportedly show that the type of dog commonly referred to as a pit bull is more vicious, aggressive, and likely to bite humans than other types of dogs. However, those studies have been challenged primarily on the basis that the underlying data is unreliable.
Proper identification of the breed is just one of the issues that make it difficult to obtain reliable data about the association of a particular breed with a propensity to bite humans. Many dog-bite studies rely on visual identification of the breed, which is considered by many experts to be unreliable. Although canine DNA testing is becoming widely available at a reasonable cost, its accuracy also has been questioned.
To further complicate matters, there does not appear to be any consensus about what a pit bull actually is. The American Kennel Club (AKC) recognizes the American Staffordshire Terrier and the Staffordshire Bull Terrier, but not the American Pit Bull Terrier. The United Kennel Club (UKC) recognizes the American Pit Bull Terrier and the Staffordshire Bull Terrier, but not the American Staffordshire Terrier. There is no AKC or UKC-standard breed called “pit bull” or “pit bull terrier.” Moreover, to qualify as a member of a recognized breed, the dog must be registered and have its pedigree certified.
Legislators have struggled with this issue when attempting to craft ordinances limiting ownership or possession of pit bulls. For example, Denver enacted an ordinance banning pit bulls, which were defined as American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, “or any dog displaying the majority of physical traits of one of those breeds.”
The U.S. Court of Appeals for the 10th Circuit found this language unconstitutionally vague (Dias v. City and County of Denver, 2009). The Supreme Court of Iowa reached a similar result, rejecting as unconstitutionally vague an ordinance that defined pit bulls as “dogs generally known by ordinary persons” as pit bulls (Am. Dog Owners Ass’n, Inc. v. City of Des Moines, 1991).
In April 2012, , Maryland’s highest appellate court held in Tracey v. Solesky, a 4-3 decision, that owners of pit bulls and cross-bred pit bulls and other persons who have the right to control the dog’s presence on the premises where any attack occurs are strictly liable for injuries caused by the dog. This opinion was subsequently revised to eliminate any references to “cross-bred pit bulls.”
For the strict liability standard to apply, the plaintiff must provide the trial court with sufficient proof that the dog involved in the attack is a pit bull and that the defendant had actual or constructive knowledge that the dog is a pit bull. The court offered no guidance as to what would constitute “sufficient proof” as to the type of dog or the level of knowledge.
The court’s ruling eliminated a long-standing common law requirement that, for strict liability to attach, injured persons must prove that the dog had vicious propensities and that the dog’s owner or the owner’s landlord knew of such propensities. The court explained, “because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls … are inherently dangerous.” Ironically, on Aug. 25, 2012, just days after the court reaffirmed its opinion, a Rottweiler made headlines when it broke loose from a leash at a Maryland farmers’ market and attacked a bystander.
The Tracey opinion generated significant controversy in Maryland, in part due to the significant repercussions for those who could potentially be held strictly liable under the new ruling. This turmoil prompted Maryland’s General Assembly to establish a task force and convene for a special session to consider proposals for legislation to ameliorate the impact of the court’s ruling.
A proposal to enact “breed-neutral” strict liability legislation was debated. Other proposals included legislation prohibiting any legal presumption that a dog is dangerous or potentially dangerous solely on the basis of its breed; requiring the use of a negligence standard without regard to breed in all civil dog-bite cases; and establishing that only persons who were responsible for negligently exercising control over a dog could potentially be held liable for injuries caused by the dog.
Legislators were unable to reach a consensus, and no formal action was taken on any of the proposed bills, but it is expected that Maryland’s General Assembly will revisit the issue in the 2013 session. In the meantime, a Maryland federal court will consider a constitutional challenge to the ruling, raised in a lawsuit filed by a pit-bull owning resident of an affordable housing co-op, Weigel v. State of Maryland and Armistead Homes Corporation.
Other Jurisdictions and “Dangerous” Dogs
Strict liability legislation, breed bans, and legislation targeting irresponsible breeding and other care-and-keeping issues are becoming increasingly common.
As of 2012, approximately 36 states and Washington, D.C. have enacted legislation that makes dog owners strictly liable for any injuries caused by their dogs. Some of these laws are breed-neutral and impose liability without regard to any history of causing injury. Other statutes apply only to dogs “at large” or to “vicious or dangerous” dogs. These are generally defined as those who, unprovoked, have attacked a human being or an animal or who have a known propensity to do so; dogs trained or kept for dogfighting; and pit bulls and pit bull mixes.
Breed bans also have been enacted in many jurisdictions. Miami-Dade County, Fla., enacted an ordinance in 1989 that prohibits owning or keeping American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, or any other dog that substantially conforms to any of these breeds’ characteristics. Prince George’s County, Md., enacted a similar pit bull ordinance in 1996.
Enforcement of a breed ban is costly, and many have questioned whether such laws are effective at reducing the incidence of dog bites or attacks. In May 2012, Cincinnati, Ohio repealed a nine-year old breed ban due to cost concerns and questions about its effectiveness. Baltimore and other municipalities have repealed breed-specific laws due to similar concerns.
Breed bans have been challenged on constitutional grounds, and the results have been mixed. The difficulty of properly defining the term “pit bull” is but one of the many issues.
According to the American Veterinary Medical Association, “breed-specific ordinances imply that there is an objective method of determining the breed of a particular dog, when in fact there is none at this time. Owners of mixed-breed dogs or dogs not … registered with a national kennel club have no means of knowing whether their dog is one of the types identified or whether they are required to comply with a breed-specific ordinance.”
Breed-specific legislation is controversial for several reasons. The CDC, the Humane Society of the United States (HSUS), and the American Society for the Prevention of Cruelty to Animals (ASPCA) oppose breed-specific legislation, primarily on the grounds that such legislation is not an effective means of achieving the goal of reducing the incidence of dog bites. HSUS’ position is based in part on a study published in the Journal of the American Veterinary Medical Association, which concluded that breed identification is problematic, making enforcement of such laws difficult.
Another concern articulated by HSUS was that breed-specific legislation has the effect of creating demand for a new “killer” dog. Decades ago, the Doberman Pinscher was widely regarded as the most dangerous breed. Currently, pit bulls and Rottweilers draw the most attention. HSUS also expressed concern that breed-specific legislation does not address the issues of abuse, aggression training, and irresponsible dog ownership, factors that contribute to a dog’s tendency to bite.
A growing trend is mandatory insurance for dog owners. In 2012, the city council of Schenectady, N.Y., voted to require that persons who are convicted of two “dog at large” offenses or one “dangerous dog” offense must purchase liability insurance to pay for the medical expenses of anyone bitten by the animal. The initial proposal would have required that every dog owner carry $50,000 in liability insurance.
Homeowners’ and renters’ insurance generally will cover dog bite liability. The insurance industry has responded to the rising cost of dog-bite claims by incorporating breed-specific prohibitions or exclusions in such policies. Pit bulls, as well as Doberman Pinschers, Rottweilers, German Shepherds, Chows, Wolf Hybrids, Akitas, Presa Canarios, and other breeds have been the subject of exclusions.
Other measures taken by insurers to limit or manage the risk include requiring dog owners to sign liability waivers for dog bites; requiring that dogs be kept muzzled, chained, or caged; charging higher premiums for insuring certain breeds; or requiring owners to take their dog to behavior modification classes.
However, some states have reacted by adopting legislation prohibiting such provisions. Michigan and Pennsylvania have laws that prohibit insurers from cancelling or denying coverage to the owners of particular dog breeds. New York’s legislature is considering a bill prohibiting homeowners’ liability insurers from refusing to issue or to renew policies, or cancelling or charging an increased premium, based solely upon harboring or owning any dog of a specific breed or mixture of breeds.
These issues are far from being settled, but it’s important to understand the ever-changing issues and legislation at hand, especially when it concerns the bond between man and his best friend.
Susan E. Smith, of counsel in Segal McCambridge Singer and Mahoney, Ltd., has represented hospitality, retail, and housing industry clients and others facing claims alleging serious bodily injury due to a variety of events. She is CLM’s state co-chair for Maryland and has been a member since 2012.
Thomas P. Bernier, senior shareholder at Segal McCambridge Singer and Mahoney, Ltd., concentrates his practice in the areas of insurance defense, personal injury, toxic torts, products liability, workers’ compensation, and criminal defense.
A Claims Investigation Guide to Dog Bites
When faced with a loss involving a dog bite or attack, the claims and risk professional should consider the following steps when investigating the claim:
Investigate the facts and circumstances of the event. Where did the event take place? Was the dog at large, or was it leashed, restrained, or confined? Did the dog escape a restraint? Was the dog willfully provoked? Was the victim lawfully on the premises where the event took place?
Ascertain the animal’s breed, ownership, and behavioral history.
Determine the standards of care and burdens of proof for the subject jurisdiction.
Identify potential defenses. Assumption of the risk and contributory negligence are viable affirmative defenses in some jurisdictions and may apply if the dog was willfully provoked.
Review the policy to determine if there are any applicable exclusions, prohibitions, or conditions of coverage.
Determine if there is other applicable insurance.