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Dog Bite

Gerstner Adam Law Sept. 24, 2020

There’s no better way to beat the summer heat than grabbing a seat in some air conditioning and pulling up the latest edition of the Gerstner Adam Law Blog. In this edition, we’re going to discuss bringing a claim due to a dog bite.

Imagine that the Herstner family has a dog named Tharley. A 120 pound lab mix, Tharley is the epitome of a good dog. He’s perpetually calm and is happiest when napping on the couch. Tharley has never shown any kind of aggression. He doesn’t even flinch when little kids climb all over him and pull his ears. Tharley pretends to be tough by loudly barking whenever somebody approaches the front door, but he folds like a wet napkin when the person enters the house.

One day, Walker Wally is strolling past the Herstner’s house. Tharley is outside helping Mr. Herstner with yard work, which Mr. Herstner thinks is ok because Tharley never goes beyond the front yard. Tharley must have mistaken Wally for a walking milk bone, because Tharley charges at and mauls Wally without any provocation. Tharley bites Wally multiple times before Mr. Herstner pulls him off. The Herstner family is in complete disbelief as paramedics haul Wally away in an ambulance, because Tharley has never so much as growled at a person before.

Is there any remedy for Wally against the Herstners? Or are they off the hook because they had no way of suspecting that Tharley would ever do that?

I love dogs just as much as the next guy, but the reality is sometimes dogs can cause devastating injuries. According to the CDC, 4.7 million dog bites occur throughout the country each year, and 800,000 of those bites result in medical care. You don’t have to dig deeply to find tragic stories involving dog attacks. A three-year-old recently died after being bit by a dog. In 2001, two dogs attacked and killed Diane Whipple while she was carrying groceries in her apartment building’s hallway. In Gainesville, Florida, two dogs broke through a fence and maimed a woman who was walking her own dog (the two dogs also killed her dog). All these tragedies underscore that dogs can be unpredictable and dangerous at times.

States have developed two different general approaches towards dog bite victims seeking compensation from the bad dog’s owner. Some states, such as our good friends south of us in Wyoming, require the dog bite victim to prove that the dog owner negligently endangered the public with his dog. For example, the dog owner would have needed to know that the dog could be aggressive towards people, perhaps by biting somebody previously.

Other states hold dog owners strictly liable for their canines. Strict liability means that a dog owner is responsible for the injuries inflicted by his dog, even if the owner had no way of foreseeing that the dog would have bitten someone. The strict liability standard puts the onus on the dog owner to ensure that the public is safe from his pooch.

Montana employs a mixture of those two approaches. In Montana cities and towns, the strict liability approach applies. Pursuant to § 27-1-715 of the Montana Code Annotated, a dog owner is liable for any injury inflicted in a city or town by a dog bite on somebody who is in public or lawfully on private property, “regardless of the former viciousness of the dog or the owner's knowledge of the viciousness.” Put another way, if you’re in a Montana city or town and your dog bites somebody who isn’t trespassing, you’re on the hook for the resulting damages. There is an exception if the dog was provoked.

Montana’s statute is silent on the standard if the dog bite occurs in the county outside of town. Accordingly, a dog bite victim must show that the dog owner was somehow negligent to recover if the bite did not occur in an incorporated city or town.

Turning back to Tharley and Wally, if the Herstners live within a Montana city or town, they are responsible for the damages caused by Tharley. It doesn’t matter that Tharley was the perfect dog before the attack. Montana law puts the burden on dog owners within cities and towns to be sure that the public is protected from their dogs. The Herstners, whether out of their own pocket or potentially through their home owner’s insurance, would have to pay for Wally’s damages.

If you’ve suffered a dog bite and are unsure if you’re entitled to compensation, you need to speak to an experienced personal injury lawyer. Contact Gerstner Adam Law and let us fight the legal battles for you.