By Andrew Delaney
There’s a concept in dog-bite cases that’s colloquially called the “one-bite rule.” What it means is that a dog owner isn’t negligent unless the dog has bitten someone or another animal in the past or previously shown some tendency to be aggressive and dangerous. It’s not a very lovable rule at times, though it’s the rule in a majority of states.
It’s the only thing considered by the SCOV in this case, though it’s never identified by its colloquial phrasing. The facts of this case are sad, and the SCOV, for what it’s worth, seems almost reluctant in concluding that the rule applies.
The Martins and their three-year old daughter, Gracie, spent the day at a campsite the family rents seasonally. The Christmans were staying in the same campground with their two boxer dogs at a site nearby. The families were friendly with each other as both were long-term campers.
Mom took Gracie to a playground adjacent to the Christmans’ site. One of the Christmans’ boxers, a two-year-old male named Diesel, was tied to a pole. Gracie wanted to pet Diesel, asked for permission, and Mr. Christman said that she could.
Diesel attacked Gracie without warning. He knocked her to the ground and bit her face. Mr. Christman forced Diesel to let go of Gracie. The Martins took Gracie to the hospital, where she had surgery.
The Martins sued “the Christmans, their insurer, and the campground on several theories, including strict liability and negligence.” The trial court granted defendants’ motion to dismiss the strict-liability claim on the grounds that Vermont requires proof of dog-owner negligence before liability for damages caused by the dog. The parties stipulated to a dismissal of other claims—one would hope pursuant to a settlement though that’s not 100% clear from the opinion. The only issue before the SCOV is the trial court’s dismissal of the strict-liability claim.
The SCOV reviews motion-to-dismiss decisions de novo. It’s an only-if-there’s-no-way-plaintiff-is-going-to-win standard.
The SCOV notes that Vermont “has long required proof of an owner’s negligence to establish liability for injuries caused by dog bites.” Flashback to 1880 and a shopkeeper’s “most wickedest kind of a dog.” While there need not be evidence of an attack on a human, there has to be some knowledge of a dog’s violent propensities before a duty of restraint—and potential for negligence—attaches.
The SCOV notes that this has always been the rule in Vermont—before liability attaches, there must be some negligence on the dog owner’s part. There must be a breach of a duty of care. In other words, owning a dog is not an activity the SCOV is willing to put in the same category as blasting dynamite or owning a pet lion.
Plaintiffs urge the SCOV to follow 18 or so states that have adopted strict liability for dog bites. The SCOV notes that almost all of those states have done so by statute. Only one state has done so in the common-law context, and it's not a widely followed decision. The SCOV throws up a this-is-really-a-legislative-issue shout out to the legislature, and declines to impose strict liability for dog bites.
The SCOV recognizes “the seriousness of the child’s injury and her innocence of fault,” but is not quite ready “to depart from long-held principles of negligence to create a new field of strict liability,” and affirms the trial court’s dismissal of the strict-liability claim.
What to do? Most of the time dogs are wonderful, peaceful, and sanguine companions. But every once in a while, they snap and something horrible like this happens. Strict liability is a sticky wicket, though. The SCOV is probably prudent in deferring to the legislature.