This week, I taught (with our esteemed visiting Professor Luna) animal-related torts, including the “one-free-bite rule.” One question that came up in class was whether the size of the dog could be treated as knowledge of the vicious propensity of the animal. I explained that it did not correlate to viciousness and gave Great Danes as an example of a large but thoroughly gentle dog. Right on cue, a story ran that night of a woman in Ohio who was killed by her Great Danes. The case actually tracked some of the issues that we discussed in class with the notable exception of the breed commentary on my part.
According to CNN affiliate WLWT, Mary Matthews, 49, died of dog bites inflicted in her Clearcreek Township, Ohio home by her two Great Danes. She appears to have forced the dogs outside and, perhaps unaware of her injuries or delirious, she changed clothes and was cleaning up the blood when she collapsed and died. She had a history of alcohol abuse and was on medications — possible contributors to her death.
Notably, her husband Mark Matthews said that he wanted to get rid of the dogs which were rescue animals. They adopted them two years ago but one bit the husband. However, he was in the county jail when the attack occurred. He found her after his release. The dogs were euthanized after the incident.
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.
Ohio is one of the state’s that have preempted the one-free-bite rule by statute to use a strict liability rule. Thus, the dog does not have to be determined to be vicious before strict liability applies. You are liable from the first bite. The only exceptions are cases of trespassing or criminal activities or a crime against another person or cases involving teasing, tormenting, or abusing the animal.