Pam: Barry, there’s one thing I have a question about. I know a few people who have bitten by dogs and then gotten settlements, but they’ve never really been very clear about why.
Barry: Well, dog bites are a particular form of personal injury claim. There are two possible basis for making these kind of claims. One is under a statute called the Animal Control Act, which is commonly referred to as the dog bite statute. The other is under what’s called common law negligence. Now, if you’re making a negligence claim, you have to show that the dog owner had notice of dangerous propensities of the dog. In other words, that the dog has done something aggressive before either towards people or other animals. Colloquially lawyers refer to as the one bite rule. That the dog has bitten someone before, even though that’s something that’s not really truly strictly required.
The other basis is the dog bite statute or the Animal Control Act. Calling it the dog bite statute, which is one of these things that we in the legal community refer to it as kind of a misnomer because you’re not actually required to have a dog bite to have a case under the Animal Control Act. What the Animal Control Act does is it imposes liability on a dog owner for an attack made by the dog. It doesn’t actually require a bite. That’s the thing that’s sort of interesting about this. Years ago, I represented a lady who was a water meter reader for the City of Chicago. She went into somebody’s basement to read the water meter and these people had a bunch of pit bulls that were chained up down in the basement.
When she walked into the basement to read the meter, the dogs lunged at her and she jumped backwards and she fell on the stairs and hurt her back. Now, the dogs didn’t actually touch her and they certainly didn’t bite her, but it was certainly an attack by the dogs that led to her falling and her hurting herself. Under that set of circumstances, we’re able to maintain a case for her under the Animal Control Act or the “dog bite statute,” even though she was actually not bitten by the dog.
Pam: So then how do insurance companies defend these claims?
Barry: If it’s a negligence claim, the defense is contributory negligence, which is basically blaming the victim of the attack for the attack in some way. If a case is brought under the Animal Control Act or the dog bite statute, the main defense is provocation. It’s kind of a weird defense because the way that the courts look at the issue or provocation is not did I intend to provoke the dog, did I bait the dog. Instead, the issue of provocation is looked at from the perspective of the dog, which I’ve always thought is just completely crazy because Lord knows what the dog actually has running through its mind. But that’s how the courts look at it and it’s kind of a wild card in these cases.
If you’re doing anything other than just walking by the dog or standing where you are, it’s a defense that the insurance companies are going to bring up and sometimes it has merit, sometimes it doesn’t. But if you’re guilty of provoking the dog, that means that there’s no case at all and essentially it’s a get out of jail free card for the insurance company. It’s a card that they aren’t afraid to play. If it works out for them, great. If it doesn’t, then they need to pay the claim.
Pam: When these cases settle, what’s included in the settlement?
Barry: Well, it’s all your basic elements of damages. It’s going to be past and future medical expenses, past and future wage loss, past and future pain and suffering, past and future disability and disfigurement. Now, the two big elements in these cases tend to be disfigurement, which is scarring that results from the dog bite, and future medical expense. Disfigurement is sort of an interesting element of damages because it tends to be fairly context specific. A jury or an insurance company for that matter is going to value scarring on the face of say a teenage girl much differently than they would on the face of somebody who was a not so successful professional boxer who had scarring anyway.
How insurance companies look at, how juries look at this are going to be very, very different from case to case. It’s one of these situations where trying to evaluate what’s a fair settlement value for scarring is so much art than science.
Pam: Okay. Are there any other unusual features about dog bite cases?
Barry: Well, one of the weird things about dog bite cases is that it often involves people who know one another. It’s very seldom that people get bitten by a dog that belongs to a total stranger. Often it involves friends or relatives or neighbors and that adds a certain element to the case that’s a little different than most cases. Frequently what you’ll see is that the people who own the dog feel very badly about what happened. They want their insurance company to make good and to fairly compensate the person who was bitten by the dog.
On the flip side, the insurance company knows that the people who are on the receiving end of the bite often feel very badly about making a claim against people who are friends or relative or neighbors and tend to kind of low ball what they offer people in light of that because they know that people aren’t necessarily willing to pursue the case all the way through to the bitter end in terms of ending up in front of a judge and jury. The last case that I had where I was ready for a trial on a dog bite case involved people who were literally next door neighbors. The day that we we were set for trial, the two of them actually rode to court together.
I knew that the case was going to settle because my client’s wife had said, “Look, there’s absolutely no way we’re going to try this case against our neighbors. You’re going to settle this case.” In the end, I got as much money as I could for the client, but because of the particular circumstances involving the relationship between my client and the person who’s being sued, the case was going to end up getting settled. Now, the other thing that people need to know about dog bite cases is that the insurance coverage that covers this is going to be your homeowners insurance or your renters’ insurance.
There are a lot of homeowners policies that will exclude dog bites from coverage, especially if there are particularly breeds involved, pit bulls, German Shepherds, Akitas. Generally, the larger breeds of dogs tend to be subject to these kinds of exclusions from your homeowners policy. My advice to people who are listening, if you own a dog, one of the things that you certainly want to do is check your policy or talk to your agent and make sure that you actually have coverage for the dog that you have in your house.
Pam: Do you have any recommendations for people who have been involved in dog bite accidents?
Barry: Well, these are another category of cases where it seems like the liability should be really obvious, but sometimes it’s not, especially with regard to the provocation defense. You certainly want to get good legal advice before you can even consider giving a recorded statement. I always recommend to people that you don’t give a recorded statement at all until you have advice and you really understand the contours of the law. Without getting that kind of advice, you’re really liable to step into a trap when the insurance adjuster is asking you questions that relate to the provocation defense in particular.
Past that, in terms of documenting your damages, one of the things that I recommend to people who have been involved in a dog bite accident is that while you’re recovering from the dog bite that you get serial photographs, meaning that most dog bites heal up relatively well over a course of four to six weeks. I recommend to people that they take photos at least once a week to show the changes in the appearance of the wound over the course of time. Now, most dog bite wounds heal up in the sense of scars mature and is as good as they’re going to get within about a year or so, but that first six to eight weeks or so tend to have really strong evidence of just how bad these injuries are.
If you’re not taking pictures on a regular basis during that first six to eight weeks, you really have a potential for shortchanging yourself in terms of the fair value of the settlement because what things look like a year out is going to be considerably different from how it looks two weeks, three weeks, four weeks, six weeks after you’re first bitten.