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 Nevertheless, it is true that this common law is superseded by the statutory provision when applicable.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.