Missouri Adopts Strict Liability for Dog Bites
Man's Best Friend No More?: Missouri Adopts Strict Liability for Dog Bites
On August 28, 2009, Missouri Senate Bill 184, relating to liability of dog owners for injuries caused by their dogs, officially became the “law of the land” in Missouri. The new law provides for one of the most sweeping changes in animal liability law in Missouri in the past 50 years.
Section 273.036.1, R.S.Mo. Cum. Supp. 2009, states:
The owner or possessor of any dog that bites, without provocation, any person while such person is on public property, or lawfully on private property, including the property of the owner or possessor of the dog, is strictly liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owner’s or possessor’s knowledge of such viciousness. Owners and possessors of the dogs shall also be strictly liable for any damage to property or livestock proximately caused by their dogs. If it is determined that the party had fault in the incident, any damages owed by the owner or possessor of the biting dog shall be reduced by the same percentage that the damaged party’s fault contributed to the incident. The provisions of this section shall not apply to dogs killing or maiming sheep or other domestic animals under section 273.020.
With this stroke of the pen, the Missouri General Assembly completely undid longstanding Missouri common-law rules governing negligence and premises liability in favor of a strict liability standard in dog bite cases. Before the enactment of the new law, no strict liability claim could be brought because of a dog bite unless the plaintiff could show the defendant had “actual knowledge of an abnormal dangerous propensity of a domestic animal.” Wilson ex rel. Wilson v. Simmons, 103 S.W.3d 211, 217 (Mo. App. 2003). This standard was commonly known as the “one-bite rule.” Further, Missouri law also recognized in dog bite cases, causes of action based on traditional common-law negligence and premises liability principles. Although “actual knowledge” may not be required in such causes of action, the law still required a finding that the dog owner had some sort of notice (either “actual” or constructive”) of a dog’s potentially dangerous propensities in order to hold the dog’s owner liable for the
Section 273.036 completely removes these traditional common-law requirements. Under
the newly enacted standard, the fact that a dog owner may not have any “notice” of a dog’s potentially dangerous propensities is no longer a defense and arguably no longer relevant or admissible evidence in a dog bite case. Rather, under the new law, a dog-bite claimant need only prove that he was lawfully on the premises at the time of the injury and did not provoke the dog before the injury. If these two elements are met, then the dog’s owner will be strictly liable for any injuries (and property damage) caused by the dog.
The new law does not leave the dog owner without any defenses in dog bite cases. The new statute specifically states the dog owner’s liability, “shall be reduced by the same percentage that the damaged party’s fault contributed to the incident.” The statute also specifically includes “provocation” as a defense.
Another potential defense still available in dog bite cases is trespass. Often times, the claimant is not where he should have been when the injury occurs. That is, the claimant did not have the property owner’s permission to be on the property where the dog is located. The statute makes clear the trespass defense is still a viable one in the appropriate circumstances.
What is not clear under the new law is whether other potential defenses to liability are available to reduce the dog owner’s liability “by the same percentage that the damaged party’s fault contributed to the incident,” as set forth in the statute. In general, “strict liability,” as set forth in Section 273.036, means there are no available defenses to liability, or defenses are limited, if the elements of strict liability are met.
Consider the following example. The claimant is lawfully at your insured’s house. The claimant knows your insured has a dog that is kept in the insured’s fenced-in backyard and that the dog has a history of biting. The fence gate to enter the backyard has a sign on it reading, “beware of vicious dog/enter at our own risk.” The claimant reads the sign, proceeds to go right though the gate into the backyard, and gets bit by your insured’s dog without provocation. Under the old law, “assumption of risk” would be a very strong liability defense to this hypothetical claim. Under the new statute, it is not so clear and could be potentially argued either way.
A couple of other interesting comments about Section 273.036 also deserve mention. First, the statute, by its terms, applies only to dogs. Although dogs likely make up the vast majority of the animal liability claims, there are other domesticated animals that produce liability claims against insureds. Horses are one example, especially in rural areas. It appears fairly clear from the explicit language of Section 273.036 that the “old rules” of Missouri common law applicable to animal liability will still apply to any non-dog, animal liability claim.
Also, the application of Section 273.036 should be considered. The statute is silent as to whether it may be applied retrospectively. The statute took effect on August 28, 2009. Most likely, the statute has prospective application only. Under Missouri law, there is a presumption that new statutes apply prospectively unless the legislature demonstrates a clear intent to apply a statute retroactively or the statute at issue is procedural or remedial in nature. Ball-Sawyers v. Blue Springs School Dist., 286 S.W.3d 247, 256 (Mo. App. W.D. 2009). Since Section 273.036 is silent on this issue and this statute is not procedural or remedial in nature, it is fairly clear that the statute will only apply to dog bite claims after August 28, 2009, and will not affect pending dog bite claims or cases.
In summary, Section 273.036 constitutes one of the most drastic changes in Missouri animal liability law in the past fifty years. The statute is a pro-claimant one and will place a much higher burden on dog owners and their insurers. The new strict liability cause of action will almost certainly result in more and higher payouts in dog bite claims. Unfortunately, whether we like it or not, Section 273.036 is now the “law of the land” in Missouri. Therefore, we in Missouri need to ask ourselves whether the dog is still “man’s best friend”? Clearly not, in the eyes of our state’s legislature.