Can I Recover Money From The Owner Of A Dog That Bit Me?

The City of El Paso has a law that requires dog owners to keep their animals exclusively on their property or under direct physical restraint (a leash). The City Ordinance §7.08.030 states, “Every person owning or having charge, care or custody or control of any animal shall keep such animal exclusively upon his own premises by means of physical restraint, provided, however, that such animal may be off such premises if under the direct physical control of a competent person.”

The City of Las Cruces / County of Dona Ana has a similar ordinance found in Section 5-5 – Restraint of Animals. That ordinance states, “A person owning or having charge, custody, care or control over a dog or cat shall keep the dog or cat upon their own premises either by a dog run or kennel, or a physical or electronic enclosure surrounding the perimeter of the property.”

Violation of either of these ordinances can lead to the owner’s liability to the dog bite victim. If found liable, the owner of a dog is liable to the dog bite victim for damages which, includes, as applicable:

• Payment of medical bills
• Payment for future surgeries and medical treatment needed because of the dog bite
• Lost wages and loss of earning capacity
• Pain and suffering
• Mental Anguish
• Disfigurement caused by the dog bite
• Physical impairment caused by the dog bite.

This has been an overview of the dog bite laws in Texas and New Mexico. If you or a family member was bitten by a dog, it is important for you to call a dog bite lawyer to help protect your legal right to recover from the owner of the dog. Harmonson Law Firm is proud to have acted as the dog bite lawyer for many families in El Paso and Las Cruces. We would welcome your call to discuss the specifics of your dog bite. Our number is (915) 228-4140.

For more detailed information on the specific dog bite cases in Texas and New Mexico, continue reading.

Texas

Strict Liability

As one of various means of recovery for a dog bite victim, Texas imposes strict liability upon the owner of a domestic animal such as a dog when the owner knows or has reason to know of dangerous propensities of the animal abnormal to its class. Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974) (citing Section 509(1) of RESTATEMENT (SECOND) OF TORTS). In a strict liability cause of action, the degree of care of the owner to protect the injured victim from the animal is immaterial. So long as the injury victim can prove that the owner knew or had reason to know of the abnormally dangerous propensities of the animal, then the owner is strictly liable no matter how much care was used to prevent the injury.

Strict liability is sometimes known as the “one free bite” rule. This is somewhat of a misnomer because the animal doesn’t actually have to bite a victim prior to establishing liability; rather, once the owner is on notice of the dangerous propensities of the animal, they get no more chances. In Lewis v. Great Southwestern Corporation, 473 S.W.2d 228, 232 (Tex. Civ. App.—Fort Worth 1971, writ ref’d n. r. e.), the court summarized the “one free bite” rule as follows, “The owner of a dog is not liable for injuries caused by it unless it is vicious and knowledge or constructive notice of that fact is shown or brought home to the owner.”

Negligent Handling

The Supreme Court of Texas has recognized a duty owed by the owner or possessor of a non-vicious animal to exercise reasonable care to prevent the animal from injuring others. Marshall, 511 S.W.2d at 258. In Marshall, the Court stated the rule of law as follows, “All animals are not vicious and a possessor of a non-vicious animal may be subject to liability for his negligent handling of such an animal.” Id. at 259 (citing RESTATEMENT OF TORTS §518 (1938)).

To recover on a negligence theory, a person injured by a domestic dog must prove the following: (1) possession and/or ownership of the dog by the defendant; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) breach of that duty; and (4) the breach of duty proximately caused the injuries. Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex. App.—Waco 2002, no pet.). In a negligent handling claim, the plaintiff does not have to prove that the animal was vicious, dangerous or had previously bitten another. Id.; see also Dunnings v. Castro, 881 S.W.2d 559, 562-63 (Tex .App.-Houston [1st Dist.] 1994, writ dism’d).

With respect to the element of duty, an owner of a dog owes a duty to exercise reasonable care to prevent his animal from injuring others. Dawkins v. Van Winkle, 375 S.W.2d 341, 347 (Tex. Civ. App.—Waco 1964, writ dism’d). Duty requires that an owner take reasonable care to confine or otherwise control a domestic animal. The standard of care is what a reasonably prudent person would do or would not have done under the same or similar circumstances. Albin, 97 S.W.3d at 666.

Negligence Per Se

In Texas, the violation of a city ordinance, providing for the proper handling of a dog, constitutes negligence per se. See Moughon v. Wolf, 576 S.W.2d 603, 603 (Tex. 1978) (citing Missouri Pac. R.R. v. American Statesman, 552 S.W.2d 99, 102 (Tex. 1977)). Negligence per se is not a separate cause of action. Johnson v. Enriquez, 460 S.W.3d 669, 673 (Tex. App—El Paso 2015, no pet.). Rather, negligence per se is a method to prove that a defendant breached the duty of care, a requisite to any negligence case. Per the Texas Supreme Court, “Negligence per se is a tort concept whereby a legislatively imposed standard of conduct is adopted by the civil courts as defining the conduct of a reasonably prudent person.” (quoting Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979).

The required elements to establish a breach of duty as a result of negligence per se are as follows: (1) the defendant violated a statute or ordinance setting an applicable standard of care; (2) the breach was the proximate cause of the plaintiff’s damages; and (3) the statute or ordinance was designed to prevent an injury to the class of persons to which the plaintiff belongs. Johnson, 460 S.W.3d at 673-74.

The El Paso City Ordinance at Section 7.08.030 provides:

Every person owning or having charge, care or custody or control of any animal shall keep such animal exclusively upon his own premises by means of physical restraint, provided, however, that such animal may be off such premises if under the direct physical control of a competent person.

The El Paso Court of Appeals recently examined this very ordinance in the Johnson case and recognized that a plaintiff could establish a breach of duty by negligence per se if there was a violation. Unfortunately for the Plaintiff in that case, a jury found against the Plaintiff in what the court of appeals described as a “credibility contest” concerning whether a St. Bernard dog named Beethoven allegedly reached through a wrought iron fence and bit the plaintiff.

At the trial, there was evidence presented that Beethoven never bit the Plaintiff which the jury apparently believed. The lesson from the El Paso Court of Appeals in Johnson is that the court will allow a Plaintiff to utilize the doctrine of negligence per se to establish the breach of duty. See also Searcy v. Brown, 607 S.W.2d 937 (Tex. Civ. App.—Houston [1st. Dist.] 1980, no writ)(analyzing negligence per se but finding that a plaintiff who was bitten on dog owner’s property was not “at large” per the city ordinance at issue); Trujillo v. Carrasco, 318 S.W.3d 455, 458 (Tex. App.—El Paso 2010, no pet.)(Pecos, Texas city ordinance prohibiting dogs from running at large did not apply where Labrador attacked chickens outside of the city limits).

New Mexico

New Mexico has laws similar to Texas so the foregoing analysis generally applies. Like Texas, there is not a specific dog bite statute. However, there is a uniform jury instruction that directs the court to provide a civil jury on the nature of the dog bite law in New Mexico. That uniform jury instruction UJI 13-506 states, “An owner of a dog is liable for damages proximately caused by the dog if the owner knew, or should have known, that the dog was vicious or had a tendency or natural inclination to be vicious.”

The same jury instruction also provides a defense to liability to the owner if the dog bite victim provoked the dog. The civil jury instruction at 13-506 states, “The owner of such a dog is not liable to the person injured if the injured person had knowledge of the propensities of the dog and wantonly excited it or voluntarily and unnecessarily put himself in the way of the dog.”

Important New Mexico Dog Bite Cases include:

• Smith v. Village of Ruidoso, 994 P.2d 50 (N.M. App. 1999): This case upholds a strict liability standard if the owner of the dog knew or should have known of the dog’s vicious tendencies.

• Mallard v. Zink, 607 P.2d 632 (N.M. App. 1979): This case holds that the injured dog bite victim must prove that the owner of the dog knew or should have known of the dog’s violent propensities. However, one co-owners knowledge of the dangerousness of the dog can be imputed to another co-owner of the dog. So, if one co-owner is aware of the dangerous propensities, it does not matter that the other co-owner didn’t know of the dog’s dangerous propensities.

If you or a family member have been injured by a dog bite, contact Harmonson Law Firm at (915) 228-4140 for a free consultation.