Liability for Dog Bites in Pennsylvania
Under Pennsylvania law, dog owners have a duty to ensure that their dogs do not cause injury to others. Deardorff v. Burger, 606 A.2d 489 (1992). The current state of the law regarding dog owner negligence was established in Miller v. Hearst, 448 A.2d 614 (1982). In Miller, the court held that a violation of the Dog Law requiring that a dog be either confined within the premises of the owner, firmly secured by means of a collar, chain or other device, or placed under the reasonable control of some person constitutes negligence per se. In fact, the Miller court held that evidence the defendant allowed his dog to run without restraining him properly was sufficient to make out a prima facie case of negligence per se.
Pursuant to 3 P.S. sec. 459-305:
It shall be unlawful for the owner or keeper of any dog to fail at all times such dog, either: 1. Confined within the premises of the owner; 2. Firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured; or 3. Under the reasonable control of some person; or when engaged in lawful hunting, exhibition or field training.
See 3 P.S. sec. 459-305
PROVING THAT THE DOG IN QUESTION HAD VICIOUS PROPENSITIES BASED UPON THIS ATTACK, EVEN IF IT WAS THE DOG'S FIRST ATTACK.
The law in Pennsylvania in regards to vicious propensities permits the jury to consider the incident that is the basis for Plaintiff's complaint. In Underwood v. Wind, 2008 Pa.Super. 158 at 12-13 (decided July 18, 2008), the Court held that the jury could consider the conduct of the dog on the day of the incident to determine if the dog had vicious propensities.
In 1996, 3 P.S. sec. 459-502-A of Pennsylvania's Dog Law was subsequently amended to provide that a single incident is sufficient to establish a propensity to attack. Accordingly, a single incident of an attack may support a finding that a dog has the propensity to attack humans. Commonwealth v. Baldwin, 767 A.2d 644 (Pa. Cmwlth. 2001). Courts will determine a dog to be dangerous where a person who did not excite or provoke a dog in any way was attacked while walking away from it. Id. Additionally, a dog may be determined to be dangerous where it escaped from a house, ran into the street and attacked without provocation. Commonwealth v. Hake, 738 A.2d 46 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 749 A.2d 473 (Pa.2000). (Emphasis supplied).
The aforementioned 1996 amendments to the Dangerous Dog Statute no longer require that the dog be found specifically "dangerous." As the Hake Court explained, after the amendments, the Statute imposes liability where any of the following situations arise:
a dog, while on public or private property, inflicts severe injury on a human being without provocation; or attacks a human being without provocation and where the dog has either (or both) a history of attacking human beings or animals without provocation or a propensity to attack human beings and/or domestic animals without provocation. Id., 738 A.2d at 48.
The most important aspect of the 1996 amendments is that a dog's propensity to attack may be proven by a single incident where severe injury was inflicted or a human being was attacked. The "propensity" to attack human beings, therefore, is proven by virtue of the attack itself, even if it is the first attack.
The Hake Court opined that implementation of the 1996 amendments was the result of the legislature's response to previous holdings which required multiple incidents before liability could be imposed. The addition of specific words such as "single incident" ensures that just one attack will find the dog dangerous and hold the "owners or keepers" liable for harboring the dog. Moreover, removing the phrase "one free bite" permits statutory liability with the dog's first bite. Id. at 49-50. (Emphasis supplied).
In Rosen v. Tate, 2003 Pa. Dist. & Cnty. Dec. LEXIS 175; 64 Pa. D. & C. 4th 524, the Plaintiff was bitten by the Defendant's dog while the dog was confined on the Defendant's premises. Evidence revealed that the dog in question had never exhibited vicious or dangerous propensities. In denying Defendant's Motion for Summary Judgment, the Court stated as follows:
[U]nder certain circumstances, that propensity to attack may be proven from the incident at issue. . . . It is now necessary for the Court to determine whether Rosen has provided evidence to establish that Tate was harboring a dangerous dog as provided by the Dog Law. Taking the last requirement first, it is not disputed that Tate is the owner of the dog that bit Benjamin. Next, Rosen has provided evidence that the dog in question bit Benjamin without provocation. This fulfills the requirement under 3 P.S. sec. 459-502-A(a)(1)(iii). Finally, Rosen must establish that the dog has either (or both) of the following: "a history of attacking human beings . . . without provocation [or] a propensity to attack human beings . . . without provocation." 3 P.S. sec. 459-502-A(a)(2). There is no evidence that the dog had a history of attacking human beings.
The only evidence provided regarding the dog's propensity to attack human beings without provocation is that the dog attacked Benjamin without being provoked. The statute provides that a propensity to attack may be proven by a single incident of a dog attacking a human being without provocation. Therefore, it appears that Rosen has provided sufficient evidence for the cause of action to survive Tate's motion for summary judgment. Id. at 531.
As such, the Court determined whether the plaintiff provided evidence to establish that defendant was harboring a dangerous dog was a jury question. The Court found that the following facts were sufficient to deny summary judgment: (1) defendant was the owner of the dog; (2) the dog bit the plaintiff without provocation; (3) although the dog had no prior history of attacking humans, the fact that the dog bit the plaintiff in this incident without provocation was sufficient. Id. at 531.
Finally, the Court stated that "it appears that a plaintiff may prove a cause of action by establishing the facts of a single incident, but a defendant will have the opportunity and burden of proving that such incident does not rise to a determination of a propensity to attack. It is axiomatic that such determination will be left for the trier of fact. Id.