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Legal VIEW

Dog Has a Fighting Chance in Court

June 13, 1985|JEFFREY S. KLEIN

A previous Legal View column about dog bites, which reported that dog owners are usually held "strictly liable" for injuries caused by their pets' bites, triggered an inquiry from Ruth Callarman of Los Angeles. Callarman wants to know whether the law should apply in an unusual situation, such as when the dog is acting in self-defense. The form of her question was also a bit unusual; it was a poem:

\o7 I'm reading in the paper

about the dogs that bite

and how the laws are set up

so the owner cannot fight.

But in the instances you quote,

there's one that you have missed.

I'll try to set it down in verse

and hope you get the gist.

There is a teen-age neighbor boy

who drives me to distraction.

Whenever he is playing ball,

my dog gets all the action.

He grimaces, he jumps and yells

and tries to get his ball.

He scares my dog who runs and hides.

This boy sure has some gall.

The dog is on my property;

he cannot get away.

The boy is surely trespassing.

That's all that I can say.

But now my dog dislikes him,

and he barks when he goes by.

This makes the boy get angry.

What's with this teen-age guy?

The other day I heard my dog

call out to me in fear.

I raced up to the front door

and shouted loud and clear,

because the boy was hitting

at my dog with baseball bat,

and if my pet had not ducked fast,

he would be knocked out flat.

If that bad boy had hit the mark,

my dog would never live to bark.

In such a case as this one,

if a dog defends itself,

how could a law in this great land

not see the cause, and understand.

A judge may very well agree with Callarman's legal analysis, and will certainly appreciate her poetry. Unfortunately, as with many legal issues, there are no clear-cut answers. And no guarantees.

Common sense seems to be on Callarman's side--that is, if she can prove that the boy really started the fight. As one appeal court judge wrote in a 1949 California decision: "good morals and sound reasoning dictate that if a person lawfully upon another's property where the biting occurred should kick, tease or otherwise provoke the dog, the law should . . . recognize the defense that the injured person . . . invited injury and, therefore, assumed the risk."

But good morals and sound reasoning don't always win lawsuits. Older cases suggest that someone who incites a dog to bite may have assumed the risk of injury and, therefore, could not recover damages from the owner. But more recent case law questions the validity of such an assumption-of-risk defense. There appear to be no published court opinions dealing directly with this point.

However, there is one other aspect of the dog-bite statute to keep in mind. The law only imposes strict liability on the owner if the victim was "lawfully" on the property. If the victim was a trespasser, the law would not apply. That doesn't mean a trespasser can't sue; it just means there is no automatic recovery. Even a trespasser might be awarded damages if he could prove the owner was negligent.

My own poetic conclusion to this:

When I said owners must pay for the bites,

I forgot the villains who may start the fights.

But if your dog defends itself, you may not have to pay.

It will, of course, depend upon the judge's final say.

Attorney Jeffrey S. Klein, a member of The Times' corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.

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