There is a tragic case out of Michigan that could present a novel controversy under the “one free bite” rule for dogs. A 33-year-old man tried to “befriend” a pit bull by putting his face up to the dog and sticking his tongue out. The pit bull proceeded to bite off the man’s tongue, or at least a significant part of it.
Police tried to recover the tongue but they believe the dog swallowed it.
Notably, this is reportedly the second bite incident by this particularly pit bull in just four months.
Under the common law, dogs unlike wild animals are not subject to strict liability. As a domesticated animal, dogs are subject to a negligence standard. This led to the evolution of a “one-free-bite” rule where after a bite, the dog was presumed to be vicious and the owner was potentially subject to strict liability for future attacks. The rule is a bit of a misnomer. You do not get a free bite if the dog showed vicious propensities in other ways.
It is often said that Michigan does not have the traditional one-free-bite rule. That is not entirely accurate. Instead it has a statutory and a common law standard. Under the Michigan Dog Bite Statute (MCL § 287.351), the first bite is sufficient for liability if the victim (1) was lawfully on the property and (2) did not provoke the dog. There is also a common law rule that, while said not to be a one-free-bite rule, comes close to the common law rule. It states that the victim only has to prove that the owner of the dog knew (or should have known) that the dog had vicious propensities. That is pretty much the same standard since the one free bite was viewed as giving the owner notice of the vicious propensities of the animal. That notice can be established by other means than an actual bite. Nevertheless, it is true that this common law is superseded by the statutory provision when applicable.
In this case, the dog would fall under any of the rules — statutory or common law. The prior reported incident would be enough to establish notice of the pit bull’s vicious propensities. The man was clearly negligent in his actions. Experts constantly warn people not to pet unknown dogs or stick your face in front of a dog’s face. A high number of dog bites, particularly with children, are on the face. One advantage of moving the case into a strict liability setting is to eliminate comparative negligence as a defense. There remains, however, assumption of the risk and in some jurisdictions comparative fault arguments that can still come into play.
As discussed previously, some towns and cities have banned pit bulls or declared them vicious due to their history and propensities. Many pit bull owners disagree and insist it is not the breed but the owners that produce vicious animals.
Source: CBS
Professor,
I would analyze the issue like this: the man provoked the dog. Therefore, the second prong of the Michigan statute precludes recovery by the man. There was no negligence under the statute, so, we don’t even get to the man’s own negligence (which, of course, there was). My guess is that, even under the common law, it is not negligent when an admittedly violent dog responds to provocation, something over which the dog owner has little control.
@davidbluefish: Maybe Doggy appreciated your friendly overture, and mistakenly perceived your outstretched hand as a toy. 😉 It’s a good thing for you Doggy was chained, or he might have given your behind a friendly nip before you made it back over the fence!
It’s always good when we can learn a lesson without paying too dearly for it. Thanks for the story.
davidbluefish said, “There is no way I would have considered suing the owner. ”
What? Well, how are you going to get on reality tv now?
When I was 33 I was a much smarter braver know-it-aller than I am now. I was at a party with maybe five beers in me and one in my hand. The fenced backyard was the location. The pit bull next door was chained up and looked vicious but lonely. I decided to jump the fence and pet it. Keep in mind I had been a mailman for 9 years and knew everything about dogs. …and according to Red Green if women don’t find you handsome, they sure like to find you handy. I proceeded to make friends with this dog, I sent out Meta waves of dominance. After 3 seconds I knew I was the superior being in this stare down and put my hand out to pet it. …. OOPs!!!! he got a hold of my palm (palm down) his jaws closed over the fleshy part below my pinkie finger and about two inches into my palm. Amazingly my Ego shrunk incredibly fast,….along with a couple other things.
He started to shake his head. I fortuitously had a brainstorm. I did not attempt to pull away. I enclosed my hand, which enclosed his lower jaw. As he shook I was able to slow his shaking. I had control of his lower jaw, he had control of my hand. We were at a standoff. He stopped shaking his head, I withdrew my hand when his jaw pressure lessened. We separated, I jumped back over the fence, and very possibly, I have not been that dumb since. …er…maybe.
There is no way I would have considered suing the owner. This stupidity was all on me. …..Darwins law is right, but one must take into account stupid luck. The human species may have been extinct long ago without it. :o) …..Certainly there is no other explanation for the success of numerous politicians.
Is there a “dumbass sticking his tongue in my face had it coming” rule?
Probably.
I try not to hang around them much in case some of teh stoopid goes catastrophically awry and into the crowd.
Gene,
Do dumbasses like rednecks ask you to hold there beer first…… Just askin…..
@rafflaw: Wasn’t there a lipsticked pit bull a while back looking to set up shop on Pennsylvania Ave?
He needed to warn the dog he was going to stick his face and tongue in the dog;s space and face,