Dog bite expert witness and animal behavior specialist, Richard H. Polsky, Ph.D. provides commentary on a dog-related injury case in Nebraska overturned by the Nebraska Supreme Court.
In the case described below, the victim is not bitten but rather sustained injury when two unrestrained, off-leash dogs charged the victim which caused her to fall and injure her elbow. There was no physical contact between the victim and the dogs. The plaintiff sued the defendant dog owner using Nebraska’s dog bite law.
Dog Bite Law in the USA – A Brief Overview
Every American state, including Nebraska, have laws making a dog owner liable for bite injuries inflicted to a person. Obviously, dog bite laws are justified given the high rate at which people are bitten by dogs and the severe injury that could result including the possibility of being killed.
Generally, although differences exist in the laws in each state, dog bite laws in the USA are based on theories of strict liability, common law or negligence.
Strict liability law states that even if a dog is placid and has never bitten a person prior to an incident in question, the owner is still strictly liable for damages. California and Arizona are states with strict liability. On the other hand, dog bite law in Texas and New York specifically specifies that owner must have possessed actual knowledge of the dogs dangerous propensities before being held liable.
Strict liability laws for dog bites are relatively straightforward. However, there are viable defenses to strict liability law, particularly that of provocation, as explained elsewhere on this website. Common-law theory as it applies to strict liability specifies that the burden is on the plaintiff to gather evidence proving that the owner knew about a dog’s dangerous propensities prior to the incident in question. Generally, the plaintiff must prove that the owner should have known or must have known about the dog’s dangerous propensity with regard to the specific behavior that caused injury to the plaintiff (e.g. jumping up on a person, chasing after a motorcycle, running between a person’s legs). Simply arguing that the breed of the dog indicates that the dog possesses dangerous propensities will not work.
Nebraska Lower Court Ruling
In the case under review, The plaintiff sued the dog owner using common law theory and negligence. The lower court granted the defendant’s motion for summary judgment on the basis that the plaintiff failed to prove the owners knowledge about the dog’s propensity for chasing people and that the dogs chased victim with the intent of catching and causing injury. In this regard, Nebraska law defines a chase by a dog as “following quickly or persistently in order to catch or harm.” The lower court ruled that there was no conclusive evidence indicating the dog’s intent was to cause harm to the plaintiff – hence, the court granted summary judgment.
Nebraska Supreme Court reversal
The case was appealed to the Nebraska Supreme Court, and the lower court’s decision was reversed. The Supreme Court reasoned that the lower court did not fully consider the various definitions of “chase” and that it failed to fully consider the alleged injuries sustained as well as other evidence indicating knowledge on part of the owner about the dog’s dangerous propensities.
Animal Behavior Expert Opinion
From my perspective in animal behavior, summary judgment granted by the lower court seems justified. Specifically, the law is rather ambiguous with regard to the word “intent”. Intent is rather subjective and open to interpretation. From an animal behavior perspective, a dog’s intent for action can only be demonstrated with sufficient evidence indicating that these dogs possessed proclivities to chase a person, or perhaps animal. Hence, the lower court made the correct decision, given that no evidence was submitted to the court proving these dogs had propensities to chase people or animals.
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Richard H Polsky, Ph.D. is an animal behavior expert witness. Dr. Polsky has nearly 30 years of experience in the evaluation and reconstruction of dog bites. He welcomes assignments from Nebraska attorneys handling dog-related personal injury lawsuits.
This page updated December 2021
