Dog Bites / Animal Attacks
Louisiana law regarding dog bites follows a strict liability theory. This means, generally, unless there is provocation, the owner of the dog will be held responsible. Louisiana Civil Code article 2321 holds the key to what must be proven in a dog bite case. It provides:
The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal's behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person's provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
The case of Becker v. Keasler is a good example of the dog bite statute in use. The case arises from a dog bite suffered by the victim, Jacalynne Becker (“Becker”), which occurred when a dog owned by the defendant, Stephen Keasler (“Keasler”), bit the victim while she was walking by his home in New Orleans. On November 3, 2002, Becker, a college student, met several friends at a local establishment for Sunday brunch and to watch a football game. While walking with her friend Sarah Colis (“Colis”) to the restaurant, Becker noticed Keasler’s dog, a large Akita, at the fence bordering Keasler’s property when she walked by. After several hours at the restaurant with her friends, Becker left with Colis by foot to return to the car. While walking toward the car, Becker reached into her purse for her cell phone to call her friend to pick them up. Becker testified that when she reached into her purse, she felt something latch onto her arm and pull toward the fence. She realized that it was a dog that had grabbed her; Colis was able to remove the dog from her arm. She and Colis waited for her other friends for a few minutes then immediately drove to the emergency room at Touro Infirmary, a hospital.
Becker testified that she did not notice any aggressive behavior by the dog prior to being bitten, and did not see or hear the dog before it attacked her. She stated that she had her right arm extended in front of her with her elbow out while she reached for her cell phone. She described the fence bordering Keasler’s property as an iron fence that abutted the sidewalk. She testified that from the sidewalk, the fence was approximately four feet tall. However, the lawn was raised higher than the sidewalk, so that from the other side, the fence only reached approximately three feet in height. Becker testified that no part of her arm or body ever crossed over the fence, and she did not attempt to pet the dog before it bit her. Keasler was not home when his dog bit Becker, but his roommate, Ronald Miller (“Miller”), testified that he witnessed the bite. According to Miller, Becker reached over the fence with her right arm, exclaiming ‘what a pretty dog’ when the dog jumped up toward her face and bit her arm. He maintained that Becker was attempting to pet the dog, and that she reached her arm into the yard, provoking the dog. Miller did admit under cross-examination that the dog bit another person on the face sometime after it bit Becker, and that the dog was euthanized as a result. Miller also testified that the dog had been known to charge the fence and bark at passing children, who would frequently provoke the dog. He further testified that the dog was tied up because Keasler did not want him near the fence where he might be antagonized to the point of possibly hurting someone. The trial court found the defendant’s version of events inconsistent, noting that it did not believe that Becker’s injury to her upper arm was consistent with her reaching into the yard to pet the dog, as described by Miller.
The Court of Appeal then looked to whether the factual findings made by the trial court were sufficient to support a finding of strict liability as a matter of law. The court looked at the following facts: Keasler’s dog bit Becker, Becker did not provoke the dog, the dog was restrained by a rope in a rather large yard, but was still able to reach the fence; the fence was only four and one-half feet tall and had six-inch gaps between its bars; and, Keasler’s dog had a history of aggression toward passers-by, which was the reason Keasler restrained the dog with a rope. The court then looked to another case to determine what elements must be proven. In Pepper v. Triplet, the Louisiana Supreme Court examined the standard set forth in Civil Code article 2321 and held that in order to establish a claim in strict liability against a dog owner, a plaintiff must prove that (1) he or she sustained injury to his person or property, (2) the injuries could have been prevented by the owner, and (3) the injury did not result from the provocation of the dog by the victim. The court further held that in order to establish that a dog owner could have prevented the injury sustained by the victim; a plaintiff must establish that the dog presented an unreasonable risk of harm. In particular, the Court noted that a plaintiff must establish:
That the risk of injury outweighed the dog's utility such that is posed an unreasonable risk of harm. If the animal posed an unreasonable risk of harm, then the owner will be presumed to be at fault, because he failed to prevent an injury he could have prevented, and he will be held strictly liable for an injury caused by his dog, unless he can show that the injury was due solely to the fault of a third party unattributable to him or to a fortuitous event, or, as Article 2321 now provides, the plaintiff fails to establish that the injuries did not result from the injured person's provocation of the dog.
The Court noted that in determining whether a dog owner's conduct constituted an unreasonable risk of harm, it must weigh the individual right of the dog owner with the “risk and gravity of harm” to the public. This is necessarily a fact-sensitive determination. Keasler pointed out that the Court found that the defendant in Pepper was not strictly liable because the dog was “completely enclosed” in a fence and that the plaintiff actually entered the defendant's fenced-in property before being bitten. Keasler maintains that because he restrained his dog both with a rope and behind a fence, the only way Becker could have been bitten would have been if she reached into his yard, provoking the dog. However, the evidence in the record indicates that although the dog was tied up, it was able to come very close to the fence, by Miller's own estimation. Photographs of Keasler's yard were entered into evidence, and the Court noted that the yard is large, with ample room to restrain a dog such that it posed no risk to passers-by. Also, the photographs of the fence were consistent with Becker's estimation of its height. Coupled with Miller's testimony that the dog had aggressively approached passers-by (neighborhood children) at the fence in the past, the Court found that the manner in which the dog was restrained constituted an unreasonable risk of harm to the public. Given the close proximity within which the dog was able to approach the fence, and the dog's aggressive nature, the design of the fence was inadequate to protect the public. The Court of Appeals affirmed the district court’s award of $2,250 dollars in special damages and $35,000 dollars in general damages, plus costs, and legal interest.
If you, a family member, or a friend has been bitten by a dog, there are some very important steps that must be taken to protect the victim and identify the liable party. The first thing to do is identify the dog that has bitten you and seek medical attention. If it is a stray dog, you may require treatment for rabies. If the dog is not a stray, then you must locate the dog’s owner to determine if it has been vaccinated. Also, here is a list of additional steps that should be followed:
1. Identify and receive contact information from any witnesses.With an office located in New Orleans, the Cardone Law Firm can help any client throughout the State of Louisiana. This includes, but is not limited to: Ascension Parish, Donaldsonville, Assumption Parish, Napoleonville, Baton Rouge, Jefferson Parish, Estelle, Gretna, Harvey, Kenner, Marrero, Metairie, New Orleans, Terrytown, Westwego, Lafayette Parish, Lafourche Parish, Thibodaux, Livingston Parish, Orleans Parish, Plaquemines Parish, Belle Chasse, and St. Charles Parish.
2. Keep records of any injuries that have been sustained: cuts, bruises, or any other type of injury received from the attack.
3. Obtain insurance and contact information from the owner of the dog.
4. Take pictures of the scene where the bite occurred.
5. Write down all of this information and specific facts of how the attack occurred.
6. Contact a personal injury attorney immediately.
For a free consultation to discuss your legal needs, contact The Cardone Law Firm today. The personal injury attorneys here understand what it takes to recover damages from dog bites and animal attacks. Phone Cardone at 1-888-892-2736 or 504-522-3333 for a free in person consultation. He is direct, insightful, proactive, and passionate about his client’s cases.