Common Law Liability of Dog Owners - Part #3

Contributory Negligence
The concept of contributory negligence and assumption of risk may also apply in cases involving dog bite injuries. The phrase "contributory negligence" refers to the negligent conduct of the person who was bitten by the dog. If that person failed to exercise care, and this failure was a cause of the dog inflicting injury, then this person may be judged to be partially or wholly responsible for the dog bite injury.

However, the concept of contributory negligence may not apply in a claim brought under the dog bite statute. That is, a compelling argument can be made that since the statute imposes strict liability against the dog owner, it does not matter that the victim was also partially negligent or atfault in some way. Another convincing argument is that the dog bite statute only expressly allows a defense of provocation of the dog. Had the legislature intended to allow a defense of contributory negligence asserted against the victim, it could have written this exception into the statute. The fact that the legislature did not expressly allow a defense of contributory negligence offers persuasive support for the contention that the dog owner should not be allowed to escape or minimize liability based on the omissions and/or conduct of the victim.

Under Washington common law, the courts have made it clear that a dog owner who has prior knowledge of his dog's vicious or dangerous propensities is strictly liable for injuries inflicted by his dog.

The courts have ruled that it does not matter if the victim was also somehow negligent or partially responsible for causing the dog to inflict injury. Thus, under common law the dog owner could not argue that the victim was negligent as long as the victim could prove that the owner knew his dog was dangerous or had vicious propensities. The reasoning was that a dog owner had an absolute duty to either destroy or confine a dog known to be dangerous and make sure that it could not injure another human being.

However, in 1986 the Washington legislature enacted a law now known as "comparative fault." This law states that the fault of all potential individuals and entities must be determined when deciding whether a person is legally obligated to pay damages. This law was enacted after most of the body of law addressing common law liability for dog owners was created by Washington courts. Thus, there may be a question about whether certain aspects of the common law addressing dog owner liability is still good law. This may not be known for sure until a higher court is asked to decide this issue.

Assumption of Risk
The defense of assumption of risk states that a person cannot recover damages for an incident if that person knowingly assumes a risk that gave rise to the injury. There are strong arguments to suggest that a dog owner cannot allege the defense of assumption of risk. For starters, the "Dog Bite Statute" does not appear to permit this defense.

The only defense under the statute is provocation of the dog. Under common law, the dog owner is strictly liable if it can be shown that the dog owner had prior knowledge of the dog's dangerous propensities. Thus, a finding of strict liability would appear to eliminate any potential argument that the victim assumed a known risk associated with the animal. Nonetheless, a resolution of these issues will likely depend heavily on the particular facts involved. There may be some fact pattern where a court might allow the dog owner to argue that the victim assumed a known risk associated with the dog which gave rise to the injury.

Landlord Liability for Dog Bite
Occasionally I come across a case where the dog attack occurred on property that was being leased to or rented by the dog owner. The question is therefore, can the landlord be held responsible for the dog bite injury under the common law even though the landlord doesn't own or harbor the dog? The answer is usually no. The Washington Supreme Court has held that a landlord cannot be held liable for the harm caused by a tenant's dog, even if the landlord had knowledge of the dog's vicious or dangerous propensities. Now, if the facts show that the landlord also participated in caring for the dog, this may be an exception. However, there is no current Washington court case that has expressly addressed this issue.