Civil Appellate Services in Colorado

Are You Liable for Your Dog’s Barking?

are you liable for your dog's barking?

What You Don’t Know About Negligence May Surprise You

On August 5, 2013, in Adams County, Colorado, an eight-year-old boy was hit by a van while fleeing two barking pit bulls.  The pit bull owner was not held responsible for the boy’s injuries.  These facts illustrate an important and often misunderstood limitation on negligence claims: legal duty.

Many people may believe that, if you are injured, there must be someone you can hold responsible.  That isn’t always the case.

Here, two young boys were walking on a public sidewalk to a local playground.  As they passed a particular house, two pit bulls charged at them, barking.  The pit bulls also jumped against the chain link fence, attempting to get to them.  The fence held, but the boys were terrified.  They ran away from the pit bulls and onto the street.

Unfortunately, a van was driving down the street and hit one of the boys.  That boy was seriously injured.

A person might suppose that the boy’s parents could collect damages from the pit bull owner due to his dogs’ behavior.  That is not the case, under a recent, Division I, Court of Appeals’ decision titled Lopez v. Trujillo (for the full text of the opinion, see Google Scholar).  The court held the owner had no responsibility for the child’s injury.

Surprised?  The case hinged on negligence and the requirements to prove it.  Negligence is a tort—essentially, a civil “crime.”  Whereas a crime involves the state pursuing someone who violated criminal law, a tort is a victim pursuing someone who committed a civil wrong.  Negligence is one type of civil wrong.

What is negligence?  Put simply, negligence is being careless.  If I own a restaurant and, after mopping the floors (which are now wet and slippery), I fail to put signs warning of the slippery condition, I am being careless.  If a person slips and falls on that floor, I could be legally responsible under negligence for that person’s injuries.

Similarly, if while mopping the floor, a restaurant employee starts to goof off, swinging the mop in the air like a sword and accidentally hitting a customer, the restaurant owner (because she or he is responsible for her or his employee) is likely legally (and thus financially) responsible for that customer’s injuries.  Again, this is careless behavior—negligence.

One could argue that an owner allowing his pit bulls to bark at and charge towards people walking on a public sidewalk is very careless of the owner.  Although pit bulls have earned an undeserved reputation as an inherently violent breed, they are physically powerful dogs which, under the care of bad owners, can be very dangerous animals.

Is it “right” for someone to terrorize the neighborhood with barking, aggressive dogs?  Does that seem wrong?  Regardless, the question is whether the law recognizes a duty of a dog owner to prevent his or her dog from terrorizing people in public spaces when the dog is still restrained on private property.

The court determined the dog owner was not responsible.  An owner, by allowing his dogs to bark and charge against a fence after people on the sidewalk, is not legally responsible for injury to a pedestrian caused by the pedestrian’s fearful response.

To better understand the court’s reasoning, we must turn to the law of negligence.  Negligence requires proof that:

  1. An individual had a duty to the victim.
  2. That individual breached that duty by acting or failing to act—that is, the individual was careless.
  3. The victim was injured. AND
  4. That injury was caused by the individual’s carelessness.

If a pit bull knocked down a shoddily-constructed fence and attacked a pedestrian, the law is clear: the pit bull’s owner had a duty to restrain his dog and failed to take reasonable steps to do so.  There, the owner would have failed his legally-recognized duty to build or maintain a fence or use another restraint to prevent his dog from attacking the pedestrian.  Thus, the owner would be liable for the pedestrian’s injuries.

In Lopez, the case hinged on whether the pit bulls’ owner had a legal duty to prevent his pit bulls from charging at passersby, barking, and jumping against the fence.  The court concluded there is no legal duty to prevent that.

Since there was no legal duty to stop or prevent the dogs’ conduct in Lopez, the owner was not negligent for allowing that conduct.

As a result, the terrified eight-year-old boy, who ran from the angry dogs into traffic, could not recover money for his injury from the failure of the pit bulls’ owner to prevent his dogs from charging passersby.

Whether determining your liability and obligations as a dog owner, or considering pursing litigation as a victim of a dog attack, it is important to fully understand your legal rights.  This requires keeping up to date with new statutes, regulations, and court opinions—as they routinely alter, expand, or reduce the responsibilities of pet owner

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