Dog bites – (248) 588-3333 – Common law liability
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Common Law Liability for Dog Bites and Other Injuries
What is “common law”, and when would I use it?
If, for whatever reason, your case does not qualify under the dog bite statute, you may still bring a lawsuit for a dog bite or other injury caused by a dog. “Common law” simply means judge made law. It refers to the rules and standards that Michigan civil courts have developed to deal with certain types of cases. The various standards that might be applied in a dog-related injury are discussed individually below.
Common law strict liability:
The State of Michigan will also allow a lawsuit to follow a “common law strict liability” standard. One key difference between this and the Michigan dog bite statute is that fault will not be assumed. The plaintiff must prove that the dog’s owner knew or should have known that their dog was “abnormally dangerous”. If the dog was not abnormally dangerous, or if the defendant had no reason to know of such danger, then the plaintiff must rely on a statutory strict liability or a common law negligence standard.
Common law strict liability claims do not allow the defense of “provocation”. It does, however, permit the defense of trespass by the bite victim. A dog bite plaintiff must have been somewhere they were legally allowed to be.
How does the court determine whether or not the dog is “abnormally dangerous”?
In Michigan law, this is an incredibly complex and ambiguous question. There is no set standard for determining when a dog is abnormally dangerous. The only thing that can be said with any certainty is that mere growling or other natural canine behaviors are not enough. That being said, a pattern of excessively aggressive behavior might be enough, especially if the dog in question has a history of severely injuring or killing humans and animals.
Common law Negligence:
It is important to keep in mind that the strict liability is not the only source of liability for dog bites, or any other dog related injury. The strict liability standard only represents the heightened seriousness that the law shows towards such injuries, therefore it is still possible to be found liable for negligence relating to a dog bite or other dog related injury.
A negligence standard, also known as “common law negligence”, is more favorable to a dog owner being sued for an injury caused by their dog. To meet such a standard, the plaintiff has to show that the owner failed to exercise a reasonable standard of care in terms or preventing their dog from hurting someone. In such a situation, an injured plaintiff might have to prove in court that the dog owner was aware that their dog was aggressive, dangerous, and prone to causing injury.
Negligence can also be found if the owner violated a public safety law involving dogs. A good example of this is a leash law, if you allow your dog to wander around without a leash in an area where leashes are legally required, then any injury your dog causes is likely to be found to be a result of your negligence. This is known as “common law negligence per se”. The very fact that you violated a law related to public safety that is meant to protect the public from dog related injuries will be used to prove that you owed a duty to members of the public and that you “breached” that duty by breaking the law.
Another consequence of applying a negligence standard is that it might weaken or even eliminate the defenses that a dog owner might have under the Michigan strict liability dog bit statute. While the trespassing victim defense remains intact, evidence of provocation is no longer a defense. In order to use your victim’s provocative behavior, you (or your attorney) will have to take added steps to apply those facts to legal standards that apply to all negligence lawsuits. Typically, the victim’s provocation of the dog would be considered “assumption of risk” or “comparative negligence”. The gist behind these defenses is that the carelessness or foolishness of the victim makes them partially or even entirely at fault for their injuries. The result of such a finding may end up being reduced damages for the victim rather than completely shielding the dog owner from liability.
If the injury is not bite related (i.e. a jumping dog knocks someone over), then the lawsuit will always follow a common law negligence standard.
How can a bite victim demonstrate a lack of reasonable care by the dog owner?
Reasonable care for a dog owner is usually pretty straight forward. The most obvious scenarios are one’s which would qualify under a more restrictive liability standard. For example, if you know that your dog is aggressive, then you should take steps to mitigate the risk of someone getting bitten. Such precautions might involve a muzzle or a warning given to every visitor to your property.
Less obvious scenarios can also be conceived through the use of a little common sense. Everyone knows that there are certain things that any decent dog owner should and should not do. Every dog should be trained, socialized and disciplined. An owner who flat out refuses to train their dog in any way is obviously negligent.
Dog’s should not just be left in cages or chained up. Nor should dogs be beaten, neglected or abused. An owner who mistreats their dog is negligent and can be liable even if the owner is not aware that their dog has developed aggression as a result of their mistreatment.
Most dog owners keep their dogs contained on their property. Even if the dog is otherwise well behaved, you can be liable if it escapes and bites someone, because the dog would never have been in a position to bite if it had been contained properly.
It is also good practice to keep a dog on a leash in public. The only time it is not negligent to leave your dog off leas in public is if the dog is extraordinarily well trained and well behaved.
What is an example of a leash law which, if violated, might give rise to liability?
A good example would be the Grosse pointe leash law, which reads: “No owner of any dog may permit such a dog to stray beyond his premises unless the dog is on a leash, but no longer than 10 feet in length which leash is properly held by a person capable of restraining the actions of such dog.”
In that jurisdiction, if you failed to install some sort of invisible or physical fence, if you walked the dog on a 12 foot leash, or handed a 10 foot leash to your three year old child; and someone was injured, then you would be liable even if none of these things would be considered negligent in the absence of that law.
Can someone other than the dog owner be held liable for a dog related injury?
Yes, they can. If the dog owner is renting or leasing the premises, then the landlord can be liable for a dog bite if the landlord knew that the dog was vicious (see Szkodinksi v. Griffin). This stems for the landlords premises liability and their responsibility to address dangerous conditions on their property. In order to avoid liability, the landlord must generally evict the owner of a vicious dog from their premises.
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