Citation. Gehrts v. Batteen, 2001 SD 10, 620 N.W.2d 775, 2001).
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Brief Fact Summary.
A domesticated dog owned by Cindy Batteen bit Plaintiff. Plaintiff sued Jon Batteen and Cindy Batteen (Defendants) in negligence and in strict liability.
Synopsis of Rule of Law.
If the owner of a domesticated animal knows or has reason to know that the animal has abnormally dangerous propensities, then he may be held liable for negligence.
Ms. Batteen visited the home of Plaintiff. Wilbur, Ms. Batteen’s St. Bernard, was secured in the back of her pickup by a harness. Plaintiff asked if she could pet Wilbur, and Ms. Batteen consented. When Plaintiff reached up to pet Wilbur, Wilbur bit her in the face causing injuries to Plaintiff’s nose and forehead. Plaintiff received extensive medical treatment as a result of those injuries. Plaintiff sued Defendants in strict liability and negligence. Defendant was granted summary judgment as to both claims. Plaintiff appealed.
Is Defendant negligent or strictly liable for the injuries caused by his domesticated dog?
No. Judgment affirmed.
* If the owner of a domesticated animal knows or has reason to know that the animal has abnormally dangerous propensities, then he may be held liable for negligence. This liability attached to Defendant regardless of the amount of care exercised. Before the breach of duty will attach, Plaintiff must establish that the owner knew or should have known of that animal’s dangerous propensities. If the animal had bitten someone before, then it is established that the owner knew or should have known of the animal’s dangerous propensities. If the animal barked, bared its teeth, and strained at its leash, then this would be sufficient to establish knowledge. In this case, there is no evidence that Defendant knew or should have known that Wilbur would bite Plaintiff. St. Bernard’s are generally gentle dogs. Wilbur was very docile and had never bitten anyone before. Plaintiff even admitted that she did not know of any incidents that would have alerted Defendant to any dangerous propensities.
* However, a cause of action for negligence can survive with the owner’s actual knowledge of an animal’s dangerous propensities. In these scenarios, the ordinary negligence standard of foreseeability will be applied. Plaintiff must establish that an ordinary, prudent person should have foreseen Wilbur’s attack. To prove this, Plaintiff called an expert who testified that Defendant should have known that Plaintiff had been around another dog, and that the scent of that dog would still be on Plaintiff. She should have known that Wilbur would have reacted to the dog scent on Plaintiff, and would have bitten the Plaintiff. Plaintiff also argued that Defendant should have taken Wilbur out of the harness and placed him on a leash when Plaintiff asked to pet him.
* The court found there to be no evidence that Defendant violated the reasonable person standard of care. A reasonable person would not have known that Wilbur would have bitten Plaintiff, because of the dog scent, or that the harness would have been an unreasonable restraint on Wilbur. Plaintiff’s cause of action for negligence cannot survive.
* The Legislature is the proper place to decide when to impose strict liability. This Legislature has not followed a strict liability standard for domesticated animals.
(Justice Sabers) This court should not have affirmed the summary judgment motion. Negligence issues are best left to trial and a jury.
In this case, the court makes a distinction between domesticated animals and wild animals. An owner is strictly liable for the harm caused by wild animals despite the care exercised. Domesticated animals are different. In this case, Defendant was not negligent because she had no reason to know Wilbur would bite Plaintiff. Defendant did not breach a duty owed to Plaintiff and thus summary judgment is appropriate.