Liability Issues

In the United States, recovery for injury to the person or property has historically been based upon common law torts. These concepts include trespass, negligence, and strict liability. Each theory of liability has its own distinct elements that must be proven to allow recovery. A person might be liable if he or she was negligent or maintained custody or control of the animal with knowledge that it was dangerous or aggressive.

Pennsylvania common law has not imposed strict or absolute liability on the part of dog owners for injuries sustained because of a dog bite.[1] However, other states find otherwise. For example, in New Jersey, strict liability applies in this area: “The owner of any dog which shall bite a person while such person is on or in a public place, or lawfully in a private place, including the property of the owner of a dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.”[2]

In order to hold the keeper of a domesticated dog liable in Pennsylvania, proof of the owner’s negligence is necessary.[3] The plaintiff is required to show that the dog had “unmistakably vicious tendencies,” and that owner knew or reasonably should have known that such tendencies existed.[4] The "one free bite rule" is not accepted as a defense in civil cases in Pennsylvania. Where a domesticated dog has demonstrated “vicious or ferocious propensities,” the “one free bite rule” does not apply.[5]

Deadorff v. Burger[6] is an example of the burden of proof necessary to impose liability. In Deadorff, a two-year-old was playing in the backyard of her father's friend's home, while the father and his friend were present raking leaves. The friend let a seventy-five pound German Shepherd, owned by the friend’s mother (the defendant), out to roam in backyard. The child hugged the dog, and the dog tried to get away. The dog bit the child, requiring sutures to her face. The trial resulted in a defense verdict for the dog owner.

On appeal, the Superior Court re-examined law concerning liability of dog owners, and held that a prior bite incident was not sufficiently specific to advise the jury in unqualified terms that a single bite on a prior occasion was sufficient to put the owner on notice of an alleged “vicious propensity.” Since the plaintiff failed to prove that the dog had “unmistakable” vicious tendencies known to the defendant, based on a single prior bite, she failed to make out a case warranting a single-bite instruction.

“[O]ne instance [of an attack by a dog] may show such unmistakable vicious propensity as to make the owner of the dog, with notice, liable for any subsequent act of a similar character.”[7] However, the necessary burden of proof does not require the dog to have bitten in the past. “As soon as the owner knows or has good reason to believe that the animal is likely to do mischief, he must take care of him; it makes no difference whether this ground of suspicion arises from one act or from repeated acts. The only restriction is that the act done must be such as to furnish a reasonable inference that the animal is likely to commit an act of the kind complained of.”[8] If a dog demonstrates ferocious propensities, but has never actually bitten anyone, “it is the master's duty to see that he is not afforded an opportunity to take a ‘first bite.’”[9] Such notice of vicious or ferocious propensity must also be of a character to inform the owner that the animal is likely to commit an act of the kind complained of.[10]

Liability may be excused: “A dog owner may always show that his or her dog escaped despite the exercise of reasonable care." In such case, the roving of the dog would not constitute negligence.[11]

In addition to the owner of the dog, an owner or occupier of the property on which the dog bite occurs can be liable where there is evidence that he or she knew or had reason to know of the dog’s vicious propensity. In Crance v. Sohanic[12], the Plaintiff recovered from dog owner, as well as occupant of house where attack occurred. Of interest, the Crance court held that subsequent incidents were admissible at trial to show that the dog had dangerous propensities.

In addition to actual knowledge, the right to control is important to assess liability against an owner of property. In Palermo v. Nails[13], the landlord knew his nephew’s dog was vicious, and had been instructed by police eighteen months earlier to keep dog tied up because it had bitten a child. The court held that a landlord out of possession of the premises can be liable for injuries caused by a dog owned and maintained by a tenant, where the landlord had actual knowledge of the presence of a dangerous animal and had the right to control or remove the animal by reclaiming possession of premises.

In Govan v. Philadelphia Housing Authority[14], immunity was granted to Philadelphia Housing Authority where the Authority did not have “direct” control over dog. In Govan, a resident at a development tied the dog to a tree in a common area, where she left the dog unattended. The dog a bit a child, who sustained serious injuries. The Authority had a policy regarding dog ownership and reserved the right to remove from the development any pet which threatened the health or safety of tenants. Prior to this incident, tenants had complained about the dog, and the injured child’s parents claimed that the Authority was responsible for their son’s injuries because the Authority had “control” over the dog and could have removed it. The court held that “constructive control” by means of reserving the right to remove threatening dogs does not rise to the level of control required to invoke the exception to sovereign immunity regarding the care, custody, or control of animals.

Pennsylvania’s Dog Law

Pennsylvania’s Dog Law of December 7, 1982, P.L. 225, No. 225, 3 P.S. §§ 459-101-459-1205 (as amended), raises issues which relate to both liability arising from dog bites and available insurance for dog bite claims. The Dog Law provides in pertinent part:

§ 459-502-A. Registration

(a) Summary Offense of Harboring a Dangerous Dog.—Any person who has been attacked by one or more dogs, or anyone on behalf of such person, a person whose domestic animal has been killed or injured without provocation, the State Dog Warden or the local police officer may file a complaint before a District Justice, charging the owner or keeper of such a dog with harboring a dangerous dog. The owner or keeper of the dog shall be guilty of the summary offense of harboring a dangerous dog if the District Justice finds beyond a reasonable doubt that the following elements of the offense have been proven.

(1) The dog has done one or more of the following:

(i) Inflicted severe injury on a human being without provocation on public or private property.

(ii) Killed or inflicted severe injury on a domestic animal without provocation while off the owner's property.

(iii) Attacked a human being without provocation.

(iv) Been used in the commission of a crime.

(2) The dog has either or both of the following:

(i) A history of attacking human beings and/or domestic animals without provocation.

(ii) A propensity to attack human beings and/or domestic animals without provocation. A propensity to attack may be proven by a single incident of the conduct described in paragraph (1)(i), (ii), (iii) or (iv).

(3) The defendant is the owner or keeper of the dog.

(a.1) Effect of a Conviction.—A finding by a District Justice that a person is guilty under subsection (A) of harboring a dangerous dog shall constitute a determination that the dog is a dangerous dog for purposes of this Act.

. . .

§ 459-503-A. Requirements

(a) Enclosure and Insurance. The Department shall issue, upon payment of all fees under subsection (b), a certificate of registration to the owner of such animal within 30 days of notification, in writing, by the Department that the dog has been determined to be dangerous and that the owner presents sufficient evidence of:

(1) A proper enclosure to confine a dangerous dog and the posting of a premises with a clearly visible warning sign that there is a dangerous dog on the property. In addition, the owner shall conspicuously display a sign with a warning symbol that informs children of the presence of a dangerous dog.

(2)(i) A surety bond in the amount of $ 50,000 issued by an insurer authorized to do business within this Commonwealth, payable to any person injured by the dangerous dog; or

(ii) a policy of liability insurance, such as homeowner's insurance, issued by an insurer authorized to do business within this Commonwealth in the amount of at least $ 50,000, insuring the owner for any personal injuries inflicted by the dangerous dog. The policy shall contain a provision requiring the secretary to be named as additional insured for the sole purpose of being notified by the insurance company of cancellation, termination or expiration of the liability insurance policy.

. . .

(d) Other Requirements.—The owner shall sign a statement attesting that

(1) The owner shall maintain and not voluntarily cancel the liability insurance required by this section during the period for which licensing is sought unless the owner ceases to own the dangerous dog prior to expiration of the license.

. . . .

§ 459-507-A. Construction of article

(a) Enforcement. – This article shall be enforced by all except counties

(b) Abusive or Unlawful Conduct of Victim.—This article shall not apply if the threat, injury or damage was sustained by a person who, at the time, was committing a willful trespass or other tort upon the premises occupied by the owner of the dog, or was tormenting, abusing or assaulting the dog or has, in the past, been observed or reported to have tormented, abused or assaulted the dog, or was committing or attempting to commit a crime.

(c) Local Ordinances.—Those provisions of local ordinances relating to dangerous dogs are hereby abrogated. A local ordinance otherwise dealing with dogs may not prohibit or otherwise limit a specific breed of dog.

(d) Insurance Coverage Discrimination.-- No liability policy or surety bond issued pursuant to this Act or any other Act may prohibit coverage from any specific breed of dog.

. . . .

§ 459-901. Enforcement of this act by the secretary; provisions for inspections

(a) General Rule.—The Secretary, through State Dog Wardens, employees of the Department and policy officers, shall be charged with the general enforcement of this law. The secretary may employ all proper means for the enforcement of this Act and may enter into agreements pursuant to section 1002, which shall be filed with the Department, for the purpose of dog control. State dog wardens and employees of the Department are hereby authorized to enter upon the premises of any persons for the purpose of investigation. A dog warden or employee of the Department may enter into a home or other building only with the permission of the occupant or with a duly issued search warrant.

. . .

§ 459-903. Violations

Unless heretofore provided, any person found in violation of any provision of Article II through Article VIII of this act shall be guilty of a summary offense for the first violation and for a second and subsequent violation which occurs within one year of sentencing for the first violation shall be guilty of a misdemeanor of the third degree

The party charged with enforcement of the Act is the Secretary of Agriculture. In Lerro v. Upper Darby Township, the court held that to the extent the Township failed to fulfill its duty under the Dog Law, it is the responsibility of the Secretary of Agriculture to take appropriate action, and enforcement by private individuals in prohibited.[15]

Under certain circumstances, permitting a dog to run free in violation of the legislatively enacted Dog Law is negligence per se.[16] However, the Dog Law will not impose liability where the dog is leashed or confined in conformance with 3 P.S. §§ 459-305(1).

Similar to common law, liability may be excused where the dog escaped despite the exercise of reasonable care. In Villaume v. Kaufman[17], a Doberman with collar and leash bit the plaintiff, who was attempting to separate her dog and Doberman. There was no evidence as to why Doberman got loose from pole to which it was secured. The defendant alleged that the Doberman escaped. Whether there was an excused violation was held to be a question for jury. On appeal, the defense verdict was upheld. The court notes that the jury could have concluded that any violation not substantial cause of the harm, because there was no evidence that plaintiff's dog was restrained. The court states: “Only an unexcused violation of the leash law is negligence per se, such as will render the dog owner absolutely liable for injuries proximately caused by the violation.”[18]

Insurance for Dog Bite Claims

Insurance for dog bite claims may be provided by homeowner's insurance, renter's insurance, landlord's insurance, or dog owner's insurance. Business liability insurance can also afford coverage if the dog is owned by or under the control of a business such as a breeder or pet shop.[19]

Dog bite claims cost insurance companies a tremendous amount of money. One estimate is that 4.7 million injuries occur from dog bites each year in the United States, with 800,000 requiring medical treatment.[20] Children are more likely to require medical treatment for dog bites. The vast majority of children who suffer dog bites are bitten on the face, neck and head, often requiring plastic and reconstructive surgery.

Verdicts and settlements can vary widely, depending on the nature of the bite and damage. Jury verdicts may be unpredictable. In one New Hampshire case, a woman received 27 dog bits from two pit bulls while in a friend’s apartment. She was in the hospital for two weeks and had $40,000 in medical bills, but was unemployed. On the basis of common law duty to keep rented premises free from dangerous conditions, she sued the landlord of the building, but not the owners of the dogs, as the owner was her friend. A jury returned a verdict of $2.14 million. The attorneys settled the case for $1.1 million while the judge was considering a motion for judgment notwithstanding the verdict.[21]

Dog attack victims in the US suffer over $1 billion in monetary losses every year.[22] Even this estimate might be low. An article in the Journal of the American Medical Association reported that in 1995, State Farm paid $70 million on 11,000 claims and estimated that the total annual insurance cost for dog bites was about $2 billion.[23]

In 2003 dog bites accounted for about one quarter of all homeowner’s insurance liability claims, costing roughly $321.6 million, down slightly from about $345.5 the previous year.[24] In 2002, liability claims accounted for 6 percent of homeowners claim costs, and in the same year the average dog bite claim cost insurers $16,600.[25]

In 1998, one in three homeowner insurance claims pertained to a dog bite but the average insurance payout was $12,000.[26] Even if a claim or lawsuit is successfully defended, defense legal fees and expenses can be significant.

The insurance industry response to increased dog bite claims is varied. Some insurance companies appear to try and reduce costs and are eliminating coverage for breeds known to have high bite rates. Several high-profile dog mauling cases, such as the fatal attack on a San Francisco woman by two Presa Canarios in 2001, have increased safety - and insurance - concerns.

Complaints have indicated that some insurance companies in the United States to either cancel or refuse to write homeowners' policies for individuals with certain dog breeds. While subject to change based on claims data or dog bite-related fatalities, the "usual suspect" breed list, according to industry sources, includes Pit Bulls, Rottweilers, German Shepherds, Doberman Pinschers, Chow Chows, Wolf hybrids and Presa Canarios. Many insurance companies do not automatically reject owners of certain breeds but may require letters from veterinarians, dog obedience certificates, or a home visit by an insurance agent. Insurers may acknowledge that the industry isn't positioned to determine which dogs should be deemed vicious. However, industry claim experience appears to lend support that certain breeds, when they do attack, tend to cause more damage, but not because these breeds bite most often.

Most insurance companies with "breed lists" appear to base their positions on data from claims and Centers for Disease Control and Prevention statistics. Certain breeds of dogs were involved in 279 fatal dog bites, according to a twenty-year study conducted by the Centers for Disease Control and Prevention and published in 2000.[27] According to the report, pit bulls and Rottweilers were involved in more than half of fatalities resulting from dog bites.[28] Of the twenty-three deaths with sufficient information, seven involved an unrestrained dog off the owner’s property; five involved a restrained dog on the owner’s property; and eleven involved an unrestrained dog on the owner’s property.[29]

Pennsylvania’s Unfair Insurance Practices Act

When an insurer becomes aware of a homeowner that owns a particular dog breed, the insurer may attempt to cancel or terminate the policy by not renewing. Termination of a homeowners policy is an unfair insurance trade practice, unless the reason for termination is allowable under Unfair Insurance Practices Act of July 22, 1974, P.L. 589, No. 205, 40 P.S. §§ 1171.1 – 1171.15 (“Act 205”).

Under Act 205, an allowable reason for termination include that the policy was obtained through material misrepresentation, fraudulent statements, omissions or concealment of fact, which are material to the acceptance of the risk by the insurer. The insurer must prove that: a) the statement was false; b) the subject is material to the underwritten risk; c) the person making the statement knew the statement was false or the statement was made in bad faith. Additional reasons which support termination is a subsequent change or increase in hazard in the risk assumed by the insurer after the policy was issued, or an increased probability of loss due to particular conditions.[30]

Under Act 205, sections 1171.4 and 1171.5 provide for specified unfair methods of competition and unfair or deceptive acts or practices which are prohibited. Section 1171.4 states:

No person shall engage in this state in any trade practice which is defined or determined to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance pursuant to this act.

Section 1171.5 defines the unfair methods of competition and unfair or deceptive acts or practices:

(a) "Unfair methods of competition" and "unfair or deceptive acts or practices" in the business of insurance means:

. . .

(9) Cancelling any policy of insurance covering owner-occupied private residential properties or personal property of individuals that has been in force for sixty days or more or refusing to renew any such policy unless the policy was obtained through material misrepresentation, fraudulent statements, omissions or concealment of fact material to the acceptance of the risk or to the hazard assumed by the company; or there has been a substantial change or increase in hazard in the risk assumed by the company subsequent to the date the policy was issued; or there is a substantial increase in hazards insured against by reason of wilful or negligent acts or omissions by the insured; or the insured has failed to pay any premium when due whether such premium is payable directly to the company or its agent or indirectly under any premium finance plan or extension of credit; or for any other reasons approved by the commissioner pursuant to rules and regulations promulgated by the commissioner. No cancellation or refusal to renew by any person shall be effective unless a written notice of the cancellation or refusal to renew is received by the insured either at the address shown in the policy or at a forwarding address. Such notice shall:

(i) Be approved as to form by the insurance commissioner prior to use.

(ii) State the date, not less than thirty days after the date of delivery or mailing on which such cancellation or refusal to renew shall become effective.

(iii) State the specific reason or reasons of the insurer for cancellation or refusal to renew.

(iv) Advise the insured of his right to request, in writing, within ten days of the receipt of the notice of cancellation or intention not to renew that the insurance commissioner review the action of the insurer.

(v) Advise the insured of his possible eligibility for insurance under the act of July 31, 1968 (P.L. 738, No. 233), known as "The Pennsylvania Fair Plan Act," or the Pennsylvania Assigned Risk Plan.

(vi) Advise the insured in a form commonly understandable of the provisions of subparagraphs (ii), (iii) and (iv) of this paragraph as they limit permissible time and reasons for cancellation.

(vii) Advise the insured of the procedures to be followed in prosecuting an appeal.

. . .

(c) Nothing in subsection (a)(9) of this section shall apply:

(1) If the insurer has manifested its willingness to renew by issuing or offering to issue a renewal policy, certificate or other evidence of renewal, including the mailing of a renewal premium notice to the insured not less than thirty days in advance of the expiration date of the policy.

(2) If the named insured has demonstrated by some overt action to the insurer or its agent other than mere nonpayment of premium that he wishes the policy to be cancelled or that he does not wish the policy to be renewed.

(3) To any policy of insurance which has been in effect less than sixty days, including any notice of termination period, unless it is a renewal policy. Any declination of coverage within the sixty-day period provided in this clause shall, for purposes of review by the insurance commissioner, be deemed a refusal to write and shall not be subject to the provisions of subsection (a)(9) of this section.

(4) Any insured may within ten days of the receipt by the insured of notice of cancellation or notice of intention not to renew, request in writing to the insurance commissioner that he review the action of the insurer in cancelling or refusing to renew the policy of such insured.

Various administrative decisions have interpreted the provisions of Act 205 in the context of dog breeds and dog bite claims. In In re Fletcher (Liberty Mutual)[31], it was held that an insurer must establish either that the insureds had no dog at the policy inception or did not have a dog with vicious propensities, where an insurer asserts that there is an increase in hazard after a policy inception.

The Act applies to only owner-occupied, private, residential properties and various decisions have defined the scope of this requirement. When a property is no longer owner-occupied, an insurer may cancel a homeowners policy.[32] Where a beneficiary of a trust owns the residence, the property is not owner-occupied.[33] The property was no longer owner-occupied where both insureds had died, and cancellation of the homeowners policy was held proper under the Act.[34] The Act also does not apply to commercial properties. Rental property owned by an insured is not owner-occupied.[35] Cancellation was also determined proper where the application submitted by the insureds stated that no business was conducted on their property and a later inspection revealed farm animals on the property and the existence of a petting zoo.[36]

Administrative decisions have also addressed the scope of an increase in hazard, where insurers have terminated policies on that basis. In In re White (Liberty Mutual)[37], a dog bit a person who entered a property through a gate marked “Beware of Dog” and ignored a sign instructing those who entered to ring a bell. This was determined not to be a substantial increase in hazard involving the particular dog. In In re Ranieli (White Hall Mutual)[38], an increase in hazard was held not to exist where a child was bitten when it approached a dog that had just been given its dinner where the dog had never before shown aggression. However, in In re Witmyer (Lititz Mutual)[39], an increase in hazard did exist where the incident was the third in which a particular dog had bitten people. Similarly, in In re Wetzel & Bresinger (Charter Oak)[40], an increase in hazard did exist where a Rottweiler left its owners’ property, followed and viciously attacked a person.

Pennsylvania court decisions have also defined the scope of Act 205. In Lititz Mut. Ins. Co. v. Commonwealth, et al.[41], the Commonwealth Court held that the acquisition of a large dog by a homeowner is not a substantial increase in hazard that justifies an insurer’s refusal to renew a homeowner’s policy. The mere presence of a dog, even of a breed known to be aggressive, is not a basis for finding a substantial increase of hazard absent some showing that the particular dog creates that risk. In Aegis Sec. Ins. Co. v. Pa. Ins. Dept.[42], the insurer cancelled the defendant’s homeowner’s insurance policy after the defendant’s dog bit a trooper who had entered her property. However, the trooper had ignored a “No Trespassing” sign, and when he entered the property, he waved a leather portfolio at the dog. The dog took these acts as aggressive behaviors and nipped the trooper’s pants, causing a superficial wound on the trooper’s leg. The Commonwealth Court held that the dog was provoked by the trooper’s actions, such that the insurer was not presented with a substantial increase in hazard after the policy was issued. The court upheld the findings of the Pennsylvania Insurance Department that the insurer cancelled the homeowner’s policy in violation of Act 205.

Other decisions recognize an increase in hazard sufficient to allow termination. In Aegis Sec. Ins. Co. v. Maleski[43], the insurance commissioner recognized that a dog bite was a sufficient increase in hazard to support a cancellation. The commissioner’s decision that the cancellation notice was not clear was reversed. In Commonwealth v. Hake[44], a dog was determined to be dangerous when it escaped from a house, ran into the street and attacked without provocation. In Commonwealth v. Baldwin[45], a dog was held dangerous where a person who did not excite or provoke a dog in any way was attacked while walking away from it.