3 Animal Injury Liability

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

3 Animal Injury Liability

A. Definition

Traditionally, a person injured by a domesticated animal had to show the owner was keeping a dangerous animal and knew or should have known of its dangerous propensities,¹i.e., the cause of action was in negligence. For injuries caused by animals other than dogs, the negligence standard still applies,² although a statute imposes strict liability for personal injury caused by trespassing livestock.³ In the case of an injury by a dog, the South Carolina Supreme Court had adopted the "California rule" as discussed below.⁴ The rule has been codified.⁵ While the rule has been described as one of strict liability, and some courts have specifically disavowed that standard,⁶ the South Carolina Supreme Court has said that the "dog bite" statute imposes strict liability against the owner of a dog or anyone having a dog in his or her care or keeping.⁷

B. Cause of Action Defined

The statute, and the California rule adopted by the court, provide that an owner or one having a dog in his or her care or keeping⁸ is liable for damages suffered by a person attacked by the dog.⁹ Under the statute, the owner of the dog is subject to liability for injuries caused by his or her dog, and when the injury occurs while the dog is in the care or keeping of someone other than its owner, the injured party may pursue a statutory claim against the owner or the other person having the dog in his or her care or keeping.¹⁰ An attack implies taking initiative in a struggle and hostile offensive action.¹¹ The statute applies "while the person is in a public place or lawfully in a private place" including the premises of the defendant. Lawfully in a private place includes being on the premises "in performance of any duty imposed ... by the laws of this State, by ordinances of any political subdivision of this State, by laws of the United States, including, but not limited to, postal regulations The plaintiff is also lawfully in a private place when there by express or implied invitation.

The California rule provides the liability attaches "regardless of whether or not the dog previously had been vicious, regardless of the owner's knowledge or lack of knowledge of any viciousness, and regardless of whether or not the owner has been negligent in respect to the dog ...".¹²

While the rule does not require any knowledge of a vicious propensity before liability attaches, it does not abrogate the common law requirement of ownership and control of either or both the dog and the premises if the injury occurs on private property. Thus, a defendant lacking possession and control of the dog and premises owes no duty to the plaintiff.¹³ More recently, the court confirmed that the invocation of common law concepts to analyze and determine the liability of a property owner who does not own the dog that caused the injury is correct.¹⁴ It added that the presence or absence of duty determines liability in two situations: a property owner exercises control over, and assumes responsibility for, the care and keeping of a dog; and, a property owner has no control of the premises and provides no care or keeping of the dog. The property owner is liable in the first instance and not in the second and to that degree, the statute implicates the common law. Thus, a landlord who exercised control over the premises and assumed some duty to care for or keep a dog belonging to another could be liable.¹⁵

C. Defenses

Assumption of the risk is a defense that is recognized in South Carolina in two forms: express assumption and implied assumption.¹⁶ Express assumption derives from an agreement to waive liability whereas implied assumption applies where the plaintiff voluntarily encounters a risk, understands and appreciates the nature and extent of a known danger created by the defendant, indicates a willingness to accept it, and freely and willingly exposes himself to it.¹⁷ A plaintiff in South Carolina is not barred from recovery by an implied assumption of the risk unless the degree of fault is greater than the negligence of the defendant.¹⁸ The California rule includes a variation on the doctrine when it provides that "... if a person knowingly and voluntarily invites attack ... or ... voluntarily and knowingly, and without reasonable necessity exposes himself [or herself] to the danger ...".¹⁹ the defendant is not liable. The statute simply provides: "If a person provokes a dog into attacking him then the owner of the dog is not liable."

The South Carolina Supreme Court has refused to adopt a "kennel worker exception" that would preclude that class of people from asserting statutory strict liability claims against dog owners and provide those owners with a new defense.²⁰

The applicable statute of limitations restriction provides a three-year limitation period.²¹

D. Damages

Actual damages may, of course, be awarded for a violation of the statute,²² but whether punitive damages are available is uncertain.²³ In Nesbitt v. Lewis,²⁴ a trial court awarded actual damages, including the cost of medical treatment of $21,850 and punitive damages of $25,000. The defendants argued on appeal that punitive damages are not recoverable under the statute. The appellate court did not address the broader issue of whether punitive damages are ever recoverable under the statute because it found a lack of evidence of wilful, wanton, or in reckless disregard by the defendant for the plaintiff's rights.

²² See, e.g., James v. Horace Mann Ins. Co., 371 S.C. 187, 638 S.E.2d 667 (S.C. 2006) (verdict for $50,500 in damages).

²³ Punitive damages are now governed by the Fairness in Civil Justice Act...