Although canines are commonly referred to as “man’s best friend,” dogs commonly bite humans. In Minnesota, the law regarding liability for dog bites can take a nip at the dog’s owners: An owner is strictly liable-basically, responsible no matter what, even if the owner was careful-for injuries sustained when a dog attacks or injures someone and that person has not provoked the pooch. This rule of law is embodied in our statutes:
If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable. The term “dog” includes both male and female of the canine species.
Minn. Stat. § 347.22. Construing this statute, the Minnesota Supreme Court has held that the dog owner’s liability statute imposes absolute liability on any dog owner whose dog “attacks or injures” another. Anderson v. Christopherson, 816 N.W.2d 626, 630 (Minn.,2012); Engquist v. Loyas, 803 N.W.2d 400, 406 (Minn.2011); Lewellin ex rel.Lewellin v. Huber, 465 N.W.2d 62, 64 (Minn.1991).
Consequently, under the strict liability statute “it makes no difference that the dog owner may have used reasonable care; negligence is beside the point. Past good behavior of the dog is irrelevant.” Huber, 465 N.W.2d at 64. Additionally, as a result of strict liability, neither the common law affirmative defenses-such as assumption of the risk-nor statutory comparative fault are available to the defendant dog owner. Id; Seim v. Garavalia, 306 N.W.2d 806 (Minn.1981). In addition to strict liability claims, dog owners can also be sued under other theories of liability, e.g., negligence.
The owner does, however, have the defenses of provocation and failure of the injured person to conduct himself peacefully while in a lawful place. Huber, 465 N.W.2d at 64; Minn. Stat. § 347.22.
Provocation under the statute has a narrower meaning than contributory negligence. Specifically, a plaintiff-victim who voluntarily and unnecessarily provokes a dog in a manner that invites a dog attack is not entitled to recover. It is not necessary that the plaintiff-victim intend to provoke the dog. Rather, provocation involves voluntary conduct that exposes the person to a risk of harm from the dog, where the person had knowledge of the risk at the time of the incident. The question of whether a dog was provoked within the meaning of the statute in a given case is primarily a question of fact for the jury.
803 N.W.2d at 406-407. Significantly, the plaintiff does not have to intend to provoke the dog-voluntary conduct exposing the plaintiff to a known risk of harm by the dog is enough to establish provocation.
In Engquist, the court sent the case back for a new trial after a defense verdict. The Engquist court decided there was an erroneous jury instruction at the first trial where the jury found a girl provoked the dog when she attempted to hug or put her arm around it and was bitten. The instruction did not explain that liability is absolute and provocation involves voluntary conduct in light of a known risk of harm.
In Bailey by Bailey v. Morris, 323 N.W.2d 785, 787-788 (Minn. 1982), decided before Engquist, the court upheld a finding of provocation where a child stepped forward and stretched out to pet a dog who was growling and the child had been warned about the dog’s nervous condition. The court recognized, too, that involuntary acts such as inadvertently stepping on a dog would not constitute provocation. Id. (Citing Fake v. Addicks, 47 N.W. 450 (1890)).
In Grams v. Howard’s O.K. Hardware Co., 446 N.W.2d 687, 690 (Minn.App. 1989), the court found there was no provocation where the 22 month old victim was told the dog could be safely petted and there was no evidence the victim appreciated any danger in approaching the dog, which was in pain.
As these cases illustrate, when an injured party sues for damages arising after being injured from a dog bite, the defendant may assert the defense of provocation. Normally, whether there is provocation in any particular case will be for the jury to decide.
If there is liability, the injured plaintiff is entitled to compensation: “the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained.” Minn. Stat. § 347.22. Thus, a successfully plaintiff will be entitled to recover damages for pain and suffering, including the fact of being attacked by dog, having medical treatment, and, in a certain cases, permanent injury or disfigurement, as well as other damages.
Other aspect of our strict liability statute, including under what circumstance a dog is the legal cause of an injury, and who is liable for “harboring” a dog, are additional fertile grounds for litigation. Cases addressing these issues will be discussed in future dog bite related posts.