Brian Cartwright

Brian Cartwright

“The first bite is free.” At least, that was the general rule when it came to people bitten by a dog or other animal.

Generally, this means that unless Fluffy has previously bitten someone or another animal, then her owner usually cannot be held liable for injuries that are caused the first time she does bite someone. The basic rationale is that the owner of an animal should not be held liable unless they knew or should have known their animal might attack someone, requiring them to safeguard potential victims.

Like every general rule, however, there are now multiple exceptions.

The first step is determining whether the owner failed to comply with a local ordinance or other law, causing injuries. If this occurs, the owner will be found automatically negligent.

For example, Denton has a “leash law” that prohibits an owner of any animal to permit it to run at large in the city or trespass on another person’s property, or to leave an animal unattended while restrained by a leash in a public place. If you are bitten and the leash law applies, the owner should be held automatically liable.

Regardless, you should also determine what kind of animal you were bitten by: a domesticated animal or a non-domesticated (wild) animal. The difference is important.

The “first bite” rule does not apply to the owner of a wild animal, like a boa constrictor, chimpanzee or zebra, even if the animal never exhibited any vicious tendencies before. If you are attacked, regardless of the steps that the owner took to safeguard you, the owner is strictly liable for the injuries caused, provided the injuries result from a dangerous propensity characteristic of its class.

For example, chimpanzees are well known for biting and clawing the face and hands of their victims — for no reason. Ouch. If this occurred, liability would be automatically imposed because the injuries resulted from a dangerous propensity characteristic to chimpanzees everywhere.

Significantly, Texas passed a “dangerous wild animals” act that requires the registration of a laundry list (although not comprehensive) of such animals and mandates that the owner maintain at least $100,000 in liability insurance coverage.

If the attacking animal was domesticated, you must determine whether or not it had dangerous propensities abnormal to its class (i.e., it is vicious, even though most dogs are typically docile).

If the animal does have such vicious propensities, and the owner knows or has reason to know that it is vicious, then the owner will be held strictly liable, just like the owner or possessor of a wild animal, even if the owner was not negligent in handling the dog and even if the owner did everything possible to prevent the attack from occurring.

For example, a dog was described prior to an attack as “ferocious,” “mean,” “bad” and “didn’t like children.” Such findings can qualify as dangerous propensities abnormal to the animal’s class, imposing strict liability.

If an animal does not have vicious tendencies, then standard negligence rules should apply. This typically means that you must prove that the animal had previously bitten someone or another animal; the owner or possessor knew or should have known of this; and they failed to act as a reasonably prudent person would have in preventing the animal from attacking you.

One exception to this is if you can show any unusual circumstances that would cause a finding that the owner or possessor should have known the animal would attack, regardless of no prior history of doing so.

For example, if docile Fluffy has had puppies, her owner may be held liable for her negligent handling if the owner fails to restrain Fluffy and then allows others to get near her puppies. Why? Because it is generally known that a female dog will bite people to protect what she believes is a threat to her puppies — whether justified in her belief or not.

Of course, an owner or possessor of an animal is not without defenses. For example, baiting is a defense. In other words, if the victim goaded the animal to see what it would do and then gets attacked, the law holds the “victim” responsible for their own stupidity. Likewise, contributory negligence may also be a defense.

Long story short: The old days of “the first bite is free” are over. There are many exceptions, depending on the circumstances. In the words of most cop shows on TV, be safe out there.

Brian T. Cartwright is board-certified in commercial and residential real estate law and can be reached at bcartwright@dentonlaw.com or www.dentonlaw.com.

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