December 10, 2018
Negligence is generally doing something which would be unreasonable to the ordinary person, or if the tortfeasor failed to take some reasonable precautions or gave a warning when a warning would be necessary, thereby causing someone harm.
For example, let’s say that the owner of a store allowed a strange dog to encounter small children, or shoppers, or patrons. This allowed for a situation to arise where the dog bit a child, shopper, or patron. That store owner could be liable in tort for the dog bite, and the patron or child could recover a monetary compensation under the doctrine of common law negligence.
How does negligence, per se, apply to dog bite personal injury law?
The violation of a state or local ordinance (e.g. an animal control law) could result in liability on the part of the dog owner who violates the law. The different counties in the state of Maryland often have laws requiring dogs to be on a leash or prohibiting them from being at large or trespassing. Cities like Rockville, Upper Marlboro, Silver Spring, Gaithersburg, Lanham, Hyattsville, Riverdale, all have local laws requiring dogs to be on leashes. Many other cities also have these laws. With few exceptions, courts have held that violating these laws can be the basis of liability for a dog bite personal injury case. In the state of Maryland, the violation constitutes evidence of negligence. This is what is known as ‘negligence per se.’
The common law requirements for suit have been modified–and they apply to most types of dog bite torts. Even so, in some cases, the dog bite victim must still establish the traditional elements required for dog bite liability. The elements for the common law doctrine referred to as scienter, or the “every dog gets one bite” rule were stated as follows, in the case Herbert v Ziegler, 216MD.212,139A.2D699, 1958. And that case held as follows, “To hold liable the owner of a domestic animal that has caused injury, the plaintiff must show that the owner knew or by the exercise of ordinary and reasonable care should have known of the inclination or propensity of the animal to do the particular mischief that was the cause of harm.”
In later cases, it was established that the owner of three dogs–who had savagely attacked a nine-year-old boy had actual knowledge of the dog’s vicious propensities. This case is Hamilton v Smith, 242MD.599, 219A.2D783, 1965. In the Hamilton case, the court held that there are three elements which must be proven against a defendant dog owner in order to establish negligence on the part of the dog owner.
Scienter, in this case, meant that the dog owner had to have knowledge of the dangerousness of the dog, and does not necessarily require a prior bite that the dog previously had bit somebody.