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VICIOUS CIRCLE: TEXAS DOG BITE LAW AND STRICT LIABILITY

Although numerous theories can be alleged in lawsuits relating to dog bites, strict liability is a theory most frequently pleaded. In such a case, the controlling issue to be determined is whether the party against whom suit is brought has knowingly kept or harbored a vicious dog. Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex.Civ.App. Eastland 1971, writ ref d n.r.e.). Because such viciousness is generally sought to be established through evidence of prior bites, this principal of liability is often referred to as the One Bite Rule. But, it should be noted that despite this moniker, it is not viciousness alone which will support liability, but also dangerousness in general. See Restatement (Third) of Torts, 23 cmt. c (2010) ( For strict liability to attach, it is not required that the animal be vicious or aggressive; a finding of the animal’s abnormal dangerousness is sufficient.).

The reason for the imposition of such strict liability is explained in the Third Restatement of Torts, which states:

Given the defendant’s knowledge, the reasonableness of the defendant’s conduct in retaining the animal is at least questionable, and strict liability gives the owner an incentive to consider whether the animal should be retained. Even if that retention is itself proper, an abnormally dangerous animal is by definition unusual; owning such an animal is an activity engaged in by a few that poses significant risks on others within the community. In these circumstances, strict liability is fairly imposed.
Restatement (Third) of Torts, 23 cmt. b (2010). Thus, [t]he owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be, unless the animal is of known vicious propensities or the owner should know of the vicious or unruly nature of the animal. Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. App. Houston [1st Dist.] 1980, no writ). Whether a dog has a vicious nature and whether the owner is aware of that nature is a question for the finder the jury to determine. See Pate v. Yeager, 552 S.W.2d 513, 516 (Tex.Civ.App. Corpus Christi 1977, writ ref d n.r.e.). Once an owner is aware of his dog’s propensity for viciousness he need not be negligent in order to be liable for the injuries caused when his dog bites a third party. See Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App. Dallas 1947, no writ) (an owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it.).

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One Bite and You’re Out: Strict Liability for Dog Bites in Texas

 

One means of imposing liability on the owners of dogs for attacks which result in injuries is the imposition of strict liability against such dog owner.[1] To recover on a claim of strict liability for injury by a dangerous domesticated animal, such as a dog, it must be shown that: (1) the defendant was the owner or possessor of the animal; (2) the animal had dangerous propensities abnormal to its class; (3) the defendant knew or had reason to know the animal had dangerous propensities; and (4) those propensities were a producing cause of the plaintiff’s injury. See Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex.App.–Dallas 2004, no pet.); Villarreal v. Elizondo, 831 S.W.2d 474, 477 (Tex.App.–Corpus Christi 1992, no writ). The need for establishing knowledge of some vicious propensity on the part of the animal in question has given rise to strict liability being referenced as the so-called one-bite rule. [2]

As our courts have explained, “in a dog bite case the controlling issue to be determined is whether the party complained against has knowingly kept or harbored a vicious dog.” Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex.Civ.App.–Eastland 1971, writ ref’d n.r.e.). Stated differently, the one-bite rule provides that an “owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it.” Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App.–Dallas 1947, no writ).  As our courts have noted, this rule does not purport to focus in any way on the particular breed of the dog which engages in the attack.  See Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 664, n. 6 (Tex.App.–Waco 2002, no pet.).  Thus, the fact that the attacking dog might be a pit bull, or similar breed with a public perception of increased hostility, will not give rise to any presumption of hostility for purposes of establishing liability.

[1] Other means of imposing liability against the owner of an attacking dog include negligence (e.g. negligent handling of an animal), and negligence per se (e.g. violation of ordinances).

[2] Although referred to as the one bite rule, it should be noted that a bite is not the only aggressive action which will give rise to a presumption of knowledge of vicious propensities.

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Hold Your Horses!: Limitations on Liability in Recreational Equine Activities

Few things are as synonymous with Texas culture and heritage as horseback riding. Yet it is an activity which offers numerous risks of injury. In recognition of these known risks, and the importance of livestock to the state, the Texas Legislature enacted the Texas Equine Act in 1995. The Equine Act, as amended¹, provides:

  • [A]ny person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor, is not liable for property damage or damages arising from the personal injury or death of a participant in a farm animal activity or livestock show if the property damage, injury, or death results from the dangers or conditions that are an inherent risk of a farm animal activity or the showing of an animal on a competitive basis in a livestock show

TEX. CIV. PRAC. & REM. CODE 87.003. The Act therefore shields those who provide or otherwise offer horses and other livestock for recreational use from liability for injuries sustained form so-called inherent risks of these activities. Among such inherent risks identified in the statute are:

  1. the propensity of a farm animal or livestock animal to behave in ways that may result in personal injury or death to a person on or around it;
  2. the unpredictability of a farm animal’s or livestock animal’s reaction to sound, a sudden movement, or an unfamiliar object, person, or other animal;
  3. with respect to farm animal activities involving equine animals, certain land conditions and hazards, including surface and subsurface conditions;
  4. a collision with another animal or an object; or
  5. the potential of a participant to act in a negligent manner that may contribute to injury to the participant or another, including failing to maintain control over a farm animal or livestock animal or not acting within the participant’s ability.

TEX. CIV. PRAC. & REM. CODE 87.003. This list of inherent risks is not, however, exclusive. See Loftin v. Lee, 341 S.W.3d 352, 356 (Tex. 2011). Surprisingly, among the unlisted inherent risks recognized by our courts is the risk that your activity’s sponsor will be negligent. See Loftin v. Lee, 341 S.W.3d at 357. The Act does, however, provide exceptions to its protections. These exceptions are for equipment provided by a defendant and known to be faulty; known latent conditions of the land; and willful, wanton, or intentional conduct. See generally TEX. CIV. PRAC. & REM. CODE 87.004. Additionally, the Act does not protect a defendant who provided the animal, but did not make a reasonable and prudent effort to determine the ability of the participant to engage safely in the farm animal activity or livestock show and determine the ability of the participant to safely manage the farm animal or livestock animal, taking into account the participant’s representations of ability. TEX. CIV. PRAC. & REM. CODE 87.004(2).

Contact Us

At the law offices of Bailey & Galyen, we provide a free initial consultation to every client. To set up an appointment with an experienced Texas personal injury attorney, contact us by e-mail or call our offices at one of our convenient locations. We will take your call 24 hours a day, seven days a week.

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¹The Act was amended in 2011 to provide the same limitations of liability described herein to most livestock activities in general, as opposed to just equine activities.

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Extended Limitations Period for Personal Injury Claims Based on Criminal Sexual Conduct

Attorneys can generally, almost instinctively, name the applicable statute of limitations for a particular cause of action. Under Texas law, however, the statute of limitations applicable to a particular cause of action may vary based on the facts and circumstances underlying the cause of action. These exceptions to the statute of limitations may come as a surprise, even to experienced attorneys.

Ordinarily, a person must bring suit for personal injury on or before the two-year anniversary of the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code 16.003(a). A cause of action based on personal injury accrues when events have occurred that allow a person to seek a judicial remedy. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex. 1977). For example, a claim for intentional infliction of emotional distress accrues when the wrongful act is committed that causes the claimant to suffer emotional distress. Long v. Houston Northwest Medical Center, Inc., 1991 Tex. App. Houston 1991 WL 19837 (Tex. App. Houston 1st Dist. Feb. 14, 1991). Predictably, certain principles, such as the discovery rule, work to limit this general rule.

An important caveat to the two-year statute of limitations applies to certain personal injury claims. A five- year, not two-year, limitations period applies when the plaintiff’s claim is predicated on conduct that also constitutes violation of a specifically enumerated criminal statute, including sexual assault and continuous sexual abuse of a young child. Tex. Civ. Prac. & Rem. Code 16.0045(a). Further, when the plaintiff is a minor at the time the cause of action accrues, the statute of limitations is tolled until the child’s eighteenth birthday, meaning that a plaintiff has until his or her twenty-third birthday to file suit. See Doe v. Catholic Diocese of El Paso, 362 S.W.3d 707, 717 (Tex. App. El Paso 2011). Ostensibly, the statute only encompasses claims based on personal injury resulting directly from conduct that violates one of the enumerated criminal statutes. Texas courts have applied the statute liberally, however. Not only does the five-year limitations period apply to tort claims based directly on a defendant’s violation of one of the enumerated criminal statutes (e.g., battery), but also to causes of action against other defendants whose negligence, for example, may have contributed to the plaintiff’s injury. See Id.

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BEATING THE TIMER: STATUTES OF LIMITATIONS AND THE DISCOVERY RULE IN PERSONAL INJURY ACTION

Most people are vaguely aware that there are deadlines associated with the filing of a lawsuit. In general these ‘deadlines’ can be classed under the moniker of statutes of limitation. As the Supreme Court has explained, statutes of limitation are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944). Statutes of limitation require that a cause of action be brought, e.g. filed, within a specified period after the day the cause of action accrues. See e.g. TEX. CIV. PRAC. & REM. CODE ‰16.002 “16.004, 16.051.

The Texas Civil Practice and Remedies Code expressly provides for a 2-year statute of limitations as to claims for personal injuries. See TEX. CIV. PRAC. & REM. CODE 16.003. In most cases, a personal injury cause of action accrues when a wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). Thus, for example, the statute of limitations would generally begin to run as to an automobile accident on the date that the accident occurred, not some later date when a party might learn that he had been injured. In some circumstances, however, the so-called ‘discovery rule’ may operate to defer the accrual of such an action until a later date that an injury is discovered.
Under Texas law, the ‘discovery rule’ provides a very limited exception to statutes of limitations. Computer Assocs. Intl, Inc., v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).

While accrual of a Texas personal injury action generally occurs when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury, the judicially-crafted discovery rule defers accrual of the cause of action if the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable. Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex. 1998). In such a circumstance, the cause of action would not accrue until the plaintiff knows or reasonably should have known of the injury. Id. at 37. In determining whether the discovery rule might apply, however, courts utilize a categorical approach. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001).

Using this approach, a court does not determine when a particular injury was actually discovered in a particular case, but rather whether the case is the type to which the discovery rule applies.

If you have a question about whether an injury you’ve suffered might be subject to the discovery rule, you should contact one of the experienced personal injury attorneys at Bailey & Galyen.

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