Gone to the dogs
There was a recent report of a dog attacking a student on the way to class in Springfield last week. Missouri has a long history of dog cases that have been taken on appeal or what are also called “reported cases” Two of the best are the “Old Drum” case which gave rise to the phrase Man’s Best Friend where future Senator George Graham Vest said:
"The best friend a man has in this world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name, may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it the most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog."
"Gentleman of the Jury, a man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer, he will lick the wounds and sores that encounters the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens."
"If fortune drives the master forth an outcast in the world, friendless and homeless, the faithful dog asks no higher privilege than that of accompanying him to guard against danger, to fight against his enemies. When the last scene of all comes, and death takes the master in its embrace and his body is laid away in the cold ground, no matter if all other friends pursue their way, there by his graveside will the noble dog be found, his head between his paws, his eyes sad but open in alert watchfulness, faithful and true even to death."
The other great case is State ex rel. Kroger Co. v. Craig, 329 S.W.2d 804 where Judge Stone wrote:
Since, down through the ages, the dog has earned and has merited acceptance as man's best friend, small wonder then that the law long ago recognized dogs as ordinarily harmless and classified them as animals domitae naturae, i.e., domestic animals, rather than as animals ferae naturae, i.e., wild animals, and that, in an action against the owner or harborer of a dog for injury inflicted by such animal, defendant's scienter (i.e., actual or constructive knowledge) of the vicious or dangerous propensities of the dog became and still is (except where removed by statute) an essential element of the cause of action and a necessary prerequisite to recovery, even as liability for injury by cattle has, since the days of Moses, depended upon proof that "the ox were wont to push with his horn in time past, and it hath been testified to his owner."
Typically, keeping a dangerous dog exposes an owner or the keeper of the dog may be liable for an action in strict liability. This means that negligence is not at issue, continued ownership of the dangerous dogs fixes liability.
There are two issues needed to present a submissible case: (1) plaintiff must establish the dog had vicious or dangerous propensities and (2) plaintiffs must show that the owner of the dog had knowledge of the dog's vicious propensities. Swain v. Simon, 699 S.W.2d 769
Barking, running loose, jumping, and lunging are activities in which all dogs engage and, absent further showing, do not alone justify a finding of vicious propensities. The same is true of jumping at or scaring people where there is no evidence of any propensity of the dog to bite or otherwise harm people. The use of a dog chain is not in itself evidence of a dog owner's knowledge of a dog's vicious propensity. To hold otherwise "would put the dog owner in an impossible position of not knowing whether to restrain or let his dog run loose. There is no obligation to restrain until the duty is evident as shown by all of the reported cases." Frazier v. Stone, 515 S.W.2d 766, 769 (Mo. App. S.D. 1974).
However, being overly friendly or playful can give rise to liability.
"A dog is not entitled to a first bite, of course, before the keeper must take notice of its behavior nor is the habit of biting persons the only evidence of a vicious nature. Any tendency of a dog to injure persons, whether the dog acts from a purpose to do bodily harm, from ill-temper, or only playfulness, is a dangerous propensity for which a keeper who has reason to know of such habit will be liable."Boosman v. Moudy, 488 S.W.2d 917 1972 Mo. App.
Any dog bite should also be looked at with the appropriate local ordinance, which may also provide an additional source of relief.
The following is a portion of the Springfield Missouri Ordinance as it relates to vicious dogs. Branson Missouri has a similar code.
Sec. 18-7. Dogs causing a nuisance; vicious dogs.
(a) It is unlawful for any person to own, harbor or possess a vicious dog, except as allowed by the provisions of this section.
The municipal court judge may declare a dog vicious:
(1) When evidence shows an attack or bite to a human is unprovoked.
(2) When evidence shows an attack upon another domestic animal is unprovoked.
(3) In the absence of a bite, when sufficient evidence is presented to show the dog or dogs display characteristics such as habitually snapping, charging, growling, or otherwise manifests a disposition to bite, attack or injure any person or domestic animal or pet if afforded the opportunity, or if in the judgment of the court it causes any person to have a reasonable fear of immediate serious physical injury.
(b) It is unlawful for any person to violate any restriction imposed by this section after a dog has been declared a vicious dog by order of the municipal court.
(c) Upon the filing of the affidavit of the director of public health and welfare or of the supervisor of the animal control division with the municipal prosecutor alleging the dog is a vicious dog, and upon the motion of the prosecutor, the judge of the municipal court may order any of the following: that the dog be seized and impounded, that the dog be impounded past the ten-day rabies observation period, or that the dog be impounded during the pendency of charges and not be released while the charges are pending without order of the municipal judge.
(d) The city may at any time initiate an administrative hearing in writing to determine if a dog is vicious pursuant to this chapter. If a dog is being held pursuant to municipal court order as an alleged vicious dog, the owner of the dog may request an administrative hearing in writing. The hearing shall be held in accordance with the procedure set forth in article X of the Land Development Code and shall be held within 25 days of the request unless continued based upon a showing of good cause. The hearing examiner, as appointed by the city manager, shall take evidence and determine if the facts support a finding that the dog is vicious. If the hearing examiner finds the dog to be vicious, an order shall be entered consistent with the remedies set forth in this section. The order of the hearing examiner shall be considered the same as an order of a municipal judge for purpose of enforcement of the order, except no penalty provided for in section 1-7 shall be imposed by the hearing examiner. If the hearing examiner is also a municipal judge, any charge being prosecuted for vicious dog may be consolidated with the administrative hearing. The municipal judge may enter a judgment and sentence in the capacity of municipal judge and may enter an appropriate order in the capacity of a hearing examiner.
(e) Any dog declared vicious by the judge of the municipal court may be ordered humanely euthanized immediately.
(f) Any dog declared vicious by the judge of the municipal court and not ordered euthanized and as a condition of residing within the corporate limits of the city shall be required to meet the following mandated restrictions:
(1) The dog or dogs must receive an identification microchip implant within one week of the order of the municipal court. The microchip used must be approved by the city department of public health and welfare and implanted by a licensed veterinarian. It shall be a violation of this Code for a microchip to be removed unless it is for a medical reason and then only by a licensed practicing veterinarian. The health authority must be notified immediately of said removal.
(2) The dog or dogs shall be securely confined indoors or in a securely enclosed and locked kennel or cage. The kennel or cage shall be the size appropriate to the size of the dog or dogs kept therein and shall provide adequate ventilation, shade from the sun, and protection from the elements. In the event of a dispute over the appropriate size, the guidelines of the state department of agriculture regulations for animal care facilities shall apply. The kennel or cage must be constructed with nine-gauge steel chain link. Such kennel or cage must have secure sides, a secure top, and secure bottom or floor attached to the sides, or the sides must be embedded in the ground. In addition, the kennel or cage must have a double-blind entrance and must be locked with a key or combination lock when such dog or dogs are within the structure. Any such kennel or cage must be located at least 25 feet from the nearest point to the dwelling of another, a church, a school or a place of business of another and must comply with all zoning and building regulations of the city.
(3) The dog or dogs shall not be allowed by remedy to be removed from the city to a location outside of the city limits.
(g) Any dog declared vicious by the judge of the municipal court and not ordered euthanized, and as a condition of residing within the corporate limits of the city, may be required to meet any or all of the following restrictions:
(1) The dog or dogs shall be spayed or neutered within one week of the ruling unless a duly licensed veterinarian practicing in the city or Greene County documents to the director of public health and welfare that medical conditions of the dog contradict sterilization. Such sterilization shall require surgical removal of the gonads. Verification that sterilization has taken place shall be presented to the director of public health and welfare by the licensed practicing veterinarian performing the procedure.
(2) The dog or dogs shall be registered with the health department each year with the annual fee to be set at $50.00.
(3) All owners, keepers or harborers of any vicious dog must maintain in effect public liability insurance in a single incident amount of $100,000.00 for bodily injury to or death of any person or persons or for damage to property owned by any persons which may result from the ownership, keeping or maintenance of such dog. A $100,000.00 surety bond or letter of credit may be substituted for the insurance policy. All owners, keepers or harborers of vicious dogs shall present to the animal control officer a statement from all parties involved certifying that they have the required insurance policy, surety bond, or letter of credit.
(4) When confined indoors, no vicious dog or dogs may be kept on a porch, patio or in any part of a house, building or structure that would allow the dog or dogs to exit such building on its own volition. No such dog or dogs may be kept in a house, building or structure when the windows are open. No vicious dog may be kept in a house, building or structure when screen windows or screen doors are the only obstacles preventing the dog from existing the structure.
(5) No person shall permit a vicious dog or dogs to go outside its kennel, cage, or secure structure unless that person has the dog or dogs securely leashed to a buckle collar and on a leash no longer than six feet in length, and that person has physical control of the dog. Such dogs shall not be leashed to inanimate objects such as trees, posts and buildings. Additionally, all such dogs on a leash outside the dog's kennel, cage, or secure structure must be muzzled by a humane muzzling device sufficient to prevent the dog from biting persons or other animals.
(6) The premises on which the dog or dogs are kept shall be clearly posted with signage warning the public of the following:
WARNING A DOG IS PRESENT ON THIS PROPERTY THAT HAS BEEN DECLARED VICIOUS BY THE SPRINGFIELD MUNICIPAL COURT.
The sign shall be visible and capable of being read from the street, road or highway that abuts the premises. In addition, the sign must include a picture or symbol that conveys the idea of a vicious dog to small children that cannot read.
(7) Any dog or dogs declared vicious by the municipal court cannot be sold, given away, or ownership otherwise transferred without the expressed permission of the director of public health and welfare.
(8) To assure compliance with the court-ordered restrictions, the health authority is hereby authorized to conduct unannounced inspections of such frequency so as to determine if said restrictions are being met.
(9) Refusal or failure to comply with any of the mandated or court-ordered restrictions or authorized inspection shall constitute a violation of this Code and, in addition, shall be considered as justifiable grounds for the judge of the municipal court to order further restrictions or euthanization of the dog or dogs.
(h) Any dog or dogs maintained and utilized by any governmental law enforcement agency shall not be considered a vicious dog so long as it is maintained and utilized for law enforcement purposes.
