The Texas Supreme Court has issued an very interesting and important new tort ruling: the state’s “first free bite” rule does not excuse an owner of the duty to intervene and render aide once an attack begins. The ruling for dog-bite victim
Genevia Bushnell not only alters the understanding of the one-free-bite rule but alters the “no-duty-to-rescue” rule.
Bushnell had been barred from suing the owner of the three dogs who attacked her in Fredericksburg in 2001, leaving wounds on her legs, arms and back that took more than two years to heal.
The dogs’ owner, Janet Mott, was accused of watching the attack from several feet away, doing nothing, and even scolding Bushnell’s son for trying to calm the dogs. In her brief, Bushnell’s lawyers wrote that the “sweep and barbarity of Mott’s position is breathtaking.”
According to Bushnell’s account in a state Supreme Court brief — which Mott “generally” agreed with in a later filing — Bushnell entered Mott’s fenced front yard and knocked on the door. When Mott opened the door, three dogs pushed through, circled behind Bushnell, pulled her down the porch steps and began biting “from all directions.”
Mott did not intercede and later admonished Bushnell to get up, saying she had not been bitten, the brief said.
Bushnell’s son, who watched the attack from their car, took her to an emergency room to be treated for 15 dog bites, including one that needed 31 stitches to close, the brief said.
Bushnell sued Mott for the $50,000 limit on her homeowners insurance, alleging that the attack left her with nerve damage, continued swelling in her foot and infections that required repeated operations.
Now, a dog owner in Texas “owes a duty to stop the dog from attacking a person after the attack has begun.”
The ruling is particularly interesting because the no-duty-to-rescue rule has long held that a person is not required to render aid or intervene when he or she did not cause of accident or injury. Thus, under such famous cases as Yania v. Bigan, you can literally watch a person die under this common law rule. If Mott did not cause the attack and was not liable for it, she could claim that she fell into the category of the no-duty-to-rescue rule. However, the Texas Supreme Court says that once the attack begins, you can be liable for failing to act despite the lack of liability or responsibility for the initial attack.
This ruling (which is featured on How Appealing) can be accessed directly at this link.
For the full story, click here.
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Kimberly:
You need to make 2 telephone calls. First call your insurance agent and make sure your homeowner’s insurance policy is up to date and provides liability coverage. Second I would call my attorney and explain the situation to him or her. The law varies from state to state and no one here except a Texas tort/insurance lawyer can truly advise you, and most will not do so for free. As a general proposition, you have very little to fear since you took appropriate steps to contain and provide for the dogs, you gave specific instructions about who was to be present, and you were obviously not there to control or fail to control the dogs. Plus you had no warning that the dogs were violent in any way. I would calm down, worry about the dog in custody, and accept the apology. As for your costs, I would pay them and take my dogs to the kennel next time. If you cheaped out and had a “girl” do it, you probably got what you paid for.
I had a girl come over to my house to feed/water my 3 dogs with SPECIFIC instruction NOT to bring ANYONE in my home, especially children b/c my dogs have not been around children and I do not know how they would react. We went on a 7 day cruise. On day two of the cruise we get a call saying that my dog “turned” on her and her nephew and they sustained dog wounds where she had to have stitches and the child’s legs were bitten. She and the child went via ambulance to the hospital where they were treated and released. When she ran from my dog she left the door open and all 3 of my dogs were outside until the police and animal control arrived then they went back into the house. They took them by force, tranquilized my two big dogs and took all 3 of them. My dog is locked up for 10 days and the others were released 2 days later costing my $80 for those 2. Can anyone tell me where I stand with this. She apologized saying that she was sorry that she knew I didn’t want anyone there, etc… Now, I think her sister is thinking lawsuit. This is not my fault. I gave instruction that she did not follow. Are we responsible? Should we be concerned? What should I do? Please help. My dogs are just like my children. He has never bitten before and I think something else happened that she is not telling me but no one was here to witness. Why should I pay for hospital bills, ambulance, and follow up visits to Dr. when she did exactly what I told her not to do for this very reason??? She ruined our vacation, traumatized our dogs (they have never been away from home), & cost us money. The 2 that were released were shaking badly, are extrmely skittish and cowering down and one of them urinated on herself. HELP please.
Desperate in Texas!
Nebet: The lethality of the dime-sized pebble would depend on its mass, as this would determine its momentum and kinetic energy.
All: Yes, a falling bullet is lethal. However, it only effects space going up-down. Shooting horizontally is more dangerous (although the bullet is equally lethal) because it effects the space in which people reside–low horizontal space.
Nebet: If the dog is retreating, why shoot at it? Your motivation to save the mauled person is gone and the dog is no longer a threat. What’s your reason for firing at the dog while it is hightailing it?
Mespo, sorry for the belated reply…I lose track of the blizzard of posts. Sometimes its like that old Lucille Burnett at the pie factory skit. The posts and threads are going by faster than I can keep up!
I have some theories of my own about our friend and his info sources. He did cite Powerline once.
“Plus ca change…” yes. I don’t know if we will ever see the end of them. Every center must, by definitions, have margins. And that right margin is incredibly persistent. I think they were slowly losing the battle for minds under the pressure of an increasingly educated populace for most of the twentieth century. It is amazing to see their resilience and spring back powers.
Couldn’t have happened without the aid and comfort given them by the mass media and the fact that very wealthy families decided to stabilize what seemed to them a chaotic social evolution and so funded an array of organizations to turn things rightward.
You get what you pay for.
Deeply:
The 2007 engineering article you cited indicates that “A 180 grain bullet doing 390 fps has about 60 ft-lbs of energy,” or more than enough to cause considerable head trauma. I have no idea which figures are more accurate, but I now do know why our corny friend has the ideas he does on most topics. Seems his thinking is mired in the early 1960’s when Communists and other right-wing manufactured threats were under every stone. The more things change for the Right, the more they stay the same. I eagerly look forward to the extinction of this knuckle-dragging ideology.
“For further insight, we turn to Hatcher’s Notebook (1962) by Major General Julian S. Hatcher, a U.S. Army ordnance expert. Hatcher described military tests with, among other things, a .30 caliber bullet weighing .021 pounds. Using a special rig, the testers shot the bullet straight into the air. It came down bottom (not point) first at what was later computed to be about 300 feet per second. “With the [.021 pound] bullet, this corresponds to an energy of 30 foot pounds,” Hatcher wrote. “Previously, the army had decided that on the average an energy of 60 foot pounds is required to produce a disabling wound. Thus, service bullets returning from extreme heights cannot be considered lethal by this standard.””
Everybody’s correct:
http://airbornecombatengineer.typepad.com/airborne_combat_engineer/2007/01/how_much_damage.html
With my faulty memory, if Google doesn’t have it, I’m in trouble. And Google doesn’t have this next memory:
I recollect that in the Vietnam war there was an aerial delivered munition that relied on terminal velocity nails or slugs to penetrate the canopies. They were employed on the strength of ground sensor data. I haven’t included them in my arguments because quite frankly I can’t remember whether they were explosively released or passively released and what the slug size was; so basically irrelevant to the discussion. FWIW
JR:
Here is the article from the Journal of Trauma cited in your article precisely supporting your position.
Ordog GJ, Dornhoffer P, Ackroyd G, et al. Spent bullets and their injuries: the result of firing weapons into the sky. J Trauma 1994;37:1003–6.
Deeply:
Don’t try to argue with our corny friend. Oblivious to the laws of gravity he somehow thinks bullets won’t fall hard enough to cause injury, despite the manifest fact of such things occurring. We could work out the math for him and use the concepts of bullet mass, velocity, acceleration, terminal speed, and drag caused by wind resistance but why bother. It’s like trying to teach the pig to sing, only this time it annoys me.
No falling bullets cannot not. Bullets at a low trajectory that have NOT lossed all the velocity from their propellant can, but spent bullets 100% under the control of simple gravity cannot.
Falling bullets can cause fatalities.
http://www.abc.net.au/science/k2/homework/s95523.htm
JR, the maximum velocity of a small falling object is about 100 mph, a speed I can approach by throwing, maybe 80mph. If I threw a half dime sized pebble at you at 80mph and hit your head, I think you would only get irritated.
Nibbles, a falling small rock from 10,000 feet isn’t going to just give you a headache. CDC and basic physics says that falling bullets can be fatal–http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5350a2.htm
But seriously, what situation do you think guns DON’T help, because I can’t recall ever hearing you argue that there’s ever a point at which having more armed people is more dangerous than having fewer armed people.
But what are the odds of that round coming down on someone’s head? You must watch too many movies. A bullet shot pretty much straight up has no more velocity than a falling small rock when it comes down. Now a bullet shot at a shallow angle is truly dangerous for a long way out. But my original point was nothing more than people have a right to defend themselves with any means possible. The left in America is intent on making it impossible to do that.
Thats okay if you live out in the country. Not so workable in residential neighborhoods. Even shooting into the air is problematic as you probably know: spent rounds coming down can kill people.
You don’t have to hit them, the loud bang is enough to send them running for home, then you get five good shots at them hightailing it.
Niblet, thanks for the nice post.
But as a dog-lover, and gun-owner, I don’t agree that shooting attacking dogs off the attackees is the answer. Too easy to miss.
More reason for nationwide looser conceal & carry laws.
It is pretty hard to get a dog off someone that has been trained to attack or been abused.
As to conceal & carry, thank God even campuses in 8 more states are on the brink of allowing conceal & carry on the campus. Conceal & carry laws have been passed in I believe about 40 states now up from just a handful a decade ago.