Finally, a case that joins my two legal loves: constitutional law and torts. This week, the White House was the scene of one of the most common torts in the country after the first dog, Sunny, bit a tourist in the White House. The female Portuguese Water Dog left a serious gash under the eye of the 18-year-old visitor.
The woman posted a picture of the nasty cut and the story ran on the site TMZ. She will reportedly have a small scar as a result of the incident.
Notably, this is not the first dog bite tort in recent history. The Bush First Dog attacked as journalist.
It is often said the every dog gets one free bite in American torts. However, the “one free bite rule” is a commonly misunderstood torts doctrine — suggesting that you are not subject to strict liability until after the first time your dog bites someone. In fact, you are subject to strict liability whenever you know or have reason to know of the vicious propensity of your animal. That can be satisfied by conduct such as frequent snapping or aggressive behavior. Indeed, that was the evidence used in the famous case from San Francisco involving lawyers and dog owners Marjorie Knoller and Robert Noel. They were found both criminally and civilly liable after their two Presa Canario dogs killed apartment neighbor Diane Whipple. Various neighbors complained about the dogs, which the couple inherited from a convict. Paul “Cornfed” Schneider is a reputed member of the Aryan Brotherhood and was planning a guard-dog business to be called “Dog-O-War.” Three days after Whipple’s death, the couple adopted Schneider as their son. The dogs had not bitten anyone but were known to be aggressive.
Sunny does not sound like a dog with a vicious past though such information does not ordinarily fully come to light before discovery. If Sunny is not found to have a vicious disposition that was known or should have been known to the Obamas, a negligence standard would apply. The question would be whether it was unreasonable to allow the dog to have such contact with tourists or visitors. Most businesses and government buildings do not allow dogs to roam or discourage petting of service animals. Dogs can be unpredictable and a jury could find, in consideration of all of the surrounding facts, that Sunny should have been kept under closer control. Notably, the United States government would be the leading defendant (and the Justice Department would be defense counsel) in such an action since this is federal property, though the Obamas would be named as co-defendants.
Even though DC recently did away with contributory negligence for cyclists and drivers, it has long been one of the few contributory negligence states that bar recovery when the plaintiffs is also at fault — even to a much lesser degree. It is not clear if the young woman could be alleged to have been a contributing cause to her own injury.
The young woman however does not appear inclined to sue. In D.C. she would have three years under D.C. Code Ann. § 12-301.
A congressional investigation of course would be exciting to watch, particularly if Bo was “flipped” and given immunity to bark against Sunny. It would be the canine version of the Valachi hearings as Bo recounted prior incidents showing a vicious propensity. Whether Bo would break Mutt Omertà is hard to gauge but it might be worth a subpoena.