Taking a Dog Bite Case to Small Claims Court

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Most dog-bite disputes never get to court; they're settled by negotiations between the injured person and the dog owner or insurance company. You don't want to get embroiled in a lawsuit if you can help it; the time and expense are mind-boggling.

If you've been injured by a dog, contact the dog's owner. Write a letter setting out what happened—even though the owner may know the facts as well as you do. Include an itemized list of your expenses, and mention any local or state dog-bite laws. Give a deadline for payment—that's a good incentive for the owner. And stress that if you don't work something out by then, you'll file a small claims (or other) court case. It's also a good idea to mention that homeowner's insurance may cover the cost; many dog owners may not realize that. 

If you do have to go to court, use small claims court if your losses aren't too large. In many states, you can sue for up to $10,000 in small claims court. The best way to show how small claims court works is to follow a hypothetical case from beginning to end. Here is how a typical case might unfold:

One Sunday morning, Jake was jogging along a dirt trail when he met two women and a dog. Because the women and the dog took up most of the center of the road, Jake moved to the far right edge. Then, noticing that the dog was on a long leash, he moved off the path into the ditch.

As it turned out, Jake didn't go quite far enough. The dog lunged for him and bit his ankle before the woman holding the leash could restrain him.

Jake yelled in pain, the woman hauled the dog back to the other side of the road, and her friend went to see how bad the bite was. Before Jake hobbled off to see a doctor, his ankle bleeding, he got the name and phone number of the dog's owner, Allison Finley, and of her friend, Kathleen Huxley.

Because it was Sunday morning, Jake had to go to a hospital emergency room to see a doctor. After he sat an hour in the waiting room, a doctor stitched up the bite and gave him some painkillers and orders to stay off the leg for a few days. Jake spent the rest of the day restless and uncomfortable. He didn't sleep well that night, and decided not to try to go to work on Monday. Tuesday morning, he saw his regular doctor, who pronounced the wound "healing nicely." That afternoon he limped back to work.

Meanwhile, Jake contacted officials at the county animal control department, notifying them of the incident and confirming that the dog was properly licensed and vaccinated for rabies. Jake consoled himself with the thought that at least he wouldn't start foaming at the mouth. After a few weeks, he could jog again without pain, although his fear of encountering the beast again prompted him to choose a new route. Jake decided it was time to add up his costs and demand payment from Allison Finley.

Looking Up the Law

First, however, he decided to check on California law to see just what he was entitled to. Looking up "Dogs" in the California code (the state statutes, available online) gave him a long list of laws. The most promising was under "Bite, liability of owner." Jake turned to the statute.

It read, in part: "The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place … regardless of the former viciousness of the dog or the owner's knowledge of such viciousness."

Reading the statute closely told Jake he had to prove:

  • Allison Finley owned the dog
  • the dog bit him
  • he was in a public place when bitten, and
  • he suffered damages as a result.

Piece of cake, Jake thought. Allison couldn't even argue about anything but the amount of the damages. And as far as Jake could tell, she didn't have any defenses to make—nobody could say, Jake was sure, that by jogging along minding his own business he had provoked the dog into biting him.

Choosing a Strategy

If your state doesn't have a dog-bite statute, or if it doesn't apply in your situation, you may be able to sue under the common law rule or a negligence theory, discussed above.

To win under a common law (one free bite) rule, you must prove that the owner knew (or should have known) that the dog was likely to cause the kind of injury suffered.

The third option, trying to prove a dog owner was negligent, is usually desirable only if there's no dog-bite statute to sue under, and it doesn't look possible to prove, on a common law theory, that the dog's owner knew the dog was dangerous.

In some states, time limits on filing lawsuits may differ depending on the theory of the lawsuit. For example, in Arizona, lawsuits under the dog-bite statute must be filed within one year of the incident. But an injured person who sues under a common law theory has two years to file a case.

Negotiating

To decide on how much to ask Allison for, Jake first added up his out-of-pocket costs, which looked like this:

Hospital emergency room $260

Doctor visits $200

1½ days off work $300

Torn sock $3

Medication $40

TOTAL $803

But what about his pain and suffering? Jake had spent two very uncomfortable days, and another ten unable to do a lot of the things he enjoyed, such as hiking. His pleasure in jogging on his formerly favorite running trail had also been displaced, in part, by anxiety about being attacked again. Jake decided he didn't want to ask for a ridiculously large amount, but he did feel wronged. Finally he decided to ask for a total of $2,000.

Jake's next step was to call Allison Finley, who told him she considered the whole incident at least half his fault. Her theory was that when Jake leaped into the ditch, it sent a signal to Fred, her dog, that Jake was afraid and fleeing. It's a well-known fact, she went on, that dogs naturally go for cowards. Eventually, she offered to pay Jake's medical bills but nothing else, claiming Jake could have gone to work if he had wanted to.

Jake hung up and went for a walk. When he'd calmed down, he wrote a letter. In California, such a demand letter is required before a small claims suit may be brought. In any state, it's a good idea.

A few days later, Jake got a reply from Allison. She said she didn't have any insurance and offered to pay $600 in six monthly installments. He filed his small claims court suit the next day.

Preparing for Court

To prepare for his court appearance, Jake gathered all his emergency room, doctor, and pharmacy bills and made photocopies of them. He also got a statement from his boss, documenting the time lost from work.

He then called the only witness to the incident, Allison's jogging companion, Kathleen Huxley. She obviously felt bad about what had happened, but didn't want to testify against her friend. Finally, she agreed to write a four-sentence note confirming that Jake had not provoked the dog and had tried to avoid it, and that the dog had lunged at and bitten him. (This kind of letter is generally allowed in small claims court, but not in regular court.) Jake could have had Kathleen served with a subpoena—an order to show up and testify in court—but he decided against it, for the sensible reason that it wouldn't be wise to force an unwilling witness to come to court.

Thinking about what other evidence would be convincing to a small claims court judge, Jake decided a picture of ferocious-looking Fred the dog would definitely help. To get it, he walked by Allison's house, where Fred was in a fenced yard and easily visible from the street.

The only witness Jake decided to call at his hearing was a friend who had brought him homemade soup when he was laid up the day after the incident. She would testify to Jake's obvious suffering.

In court, everything went just about as Jake had expected. He presented all his evidence and showed a photo of his ankle shortly after he'd been bitten. Allison testified that Fred was really a sweet animal. She reminded the judge that several women had been attacked while jogging in the area, and said she needed the dog for protection. She brought along a couple of witnesses who said nice, but irrelevant, things about Fred's good disposition.

What did the judge say? Here's what four experts, two small claims court judges and two small claims court advisers (court employees who help people going to small claims court prepare their cases), said they thought the verdict would be:

Judge #1: $2,000

Judge #2: $1,300

Adviser #1: $900

Adviser #2: $860

There's no better way to show you the inherent unpredictability of taking a dispute to court, even when a jury isn't involved.

by: , J.D.

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