The Current State of Alabama Dog-bite Law: Breeding Confusion in the Law

• Publication year: 2011
• Pages: 0217
• Citation: Vol. 72 No. 3 Pg. 0217

The Current State of Alabama Dog-Bite Law: Breeding Confusion in the Law
Vol. 72 No. 3 Pg. 217
The Alabama Lawyer
MAY, 2011 By Clay T. Rossi

Over a decade and a half ago, the Alabama Supreme Court departed from the traditional common law rule concerning a dog owner's liability for dog-bite. The common law rule, more often than not mischaracterized as the "one bite" or "free bite" rule, focused on an owner's actual or constructive knowledge of the vicious propensities of the particular animal in question. The rule came to be called the "scienter rule" and the action, distinct from negligence and sounding in case, likewise bears the name scienter (coming from the words scienter retinuit in the old form of the writ).¹ In Humphries v. Rice, 600 So. 2d 975 (Ala. 1992), the Alabama Supreme Court radically expanded the means of proving scienter by allowing for a finding based on actual or constructive knowledge of the "breed propensity" of the dog in question. The supreme court's innovation was ostensibly a social policy measure fueled by well-publicized attacks by certain "dangerous breeds," i.e., Rottweilers, Doberman Pinschers and Pit Bull Terriers. Unfortunately for the attorney involved in a dog-bite case, the question of how one goes about proving (or disproving) the breed propensity under the Humphries standard is not quite clear. The traditional common law rules for proving scienter would seem to apply but, even if they do, contending with the Humphries standard still presents various practical issues for the litigator.

The Common Law Action for Scienter

Theoretically, the common law of England applies the rule of scienter to all animals regardless of species or breed. As a practical matter, over the course of time the imputation of scienter as a matter of law was established for owners and keepers of wild or dangerous animals, i.e., ferae naturae. Conversely, in the case of "harmless animals," scienter had to be proven. A harmless animal (ferae mansuetae) was defined as either an animal which by its very nature poses no danger to humans or one which, though it has the potential to be dangerous, by virtue of longstanding domestication is shown to be harmless.² A dog arguably falls under the second prong of the test for a "harmless animal" as it does possess a potential danger by reason of its physical capabilities and predatory skills. From these categories it is plain to see that the traditional tests for animal dangerousness were anthro-pocentric and that an animal's dangerous propensity toward other animals was not relevant to proving scienter.³

Intertwined with the requirement of human-directed aggression is the law's traditional understanding that "in the case of harmless animals, it is not sufficient to prove that the wrong was a direct one, for something also turns upon the mens rea of the animal . . . the rule is that the injury must be the result of a vicious propensity."⁴ Requiring that the animal be possessed of something akin to mens rea brings into focus why the common law explicitly rejected any notion that a dog could be judged dangerous on the sole basis of its breed.⁵

The common law did provide certain affirmative defenses to the scienter action. Aside from the standard affirmative defenses of consent, contributory negligence and self-defense on the part of the dog, the common law also provided a defense if a lost animal had reverted to a wild state.⁶

There also existed at common law certain wrongs committed by dogs which would not fall under the scienter action, the most obvious being when a dog was purposefully sicced upon another person.⁷ Also recognized were actions in negligence where an animal caused harm by reason of being brought to an inappropriate public place.⁸ At least one more recent English case can be found where the owner of a loose dog who innocently caused injury by tripping a pedestrian was liable for both nuisance and negligence.⁹

Finally, in what would otherwise be a historical footnote if not for a quirk in Alabama law, the scienter action is one which sounded in trespass on the case.¹⁰

The Alabama Law of Scienter

One of the oldest recorded dog-bite cases in Alabama, Durden v. Barnett & Harris, 7 Ala. 169 (Ala. 1844), conforms very neatly to the traditional common law. The opinion of Justice Goldthwaite begins by acknowledging that "an action on the case is the proper remedy when an injury has been sustained from the act of any mischievous animal."¹¹ This raises the important issue as to the proper statute of limitations on a scienter claim. As noted in McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004), actions in case are subject to a six-year statute of limitations rather than a two-year period for standard negligence claims. Given that this specific issue has not yet been addressed, this allows for the argument to be made that the statute of limitations for an action for dog-bite injuries in Alabama is six years.

Continuing in the Durden opinion, the court affirms the traditional common law position regarding the requirements of a scienter claim, as Justice Goldthwaite writes:

It is said the owner of domestic animals, not necessarily inclined to commit mischief, such as dogs, horses, &c., is not liable for an injury committed by them, unless it can be shown that he previously had notice of the animals [sic] mischievous propensity; or, that the injury was attributable to some neglect on his part.¹²

Using the term "mischief" as synonymous with what we today would call "vicious propensity," Justice Goldthwaite briefly outlines the scienter action. He also seems not to rule out the possibility of a negligence action stemming from "neglect." Stating that under the facts of the case it "was necessary to allege and prove a scienter," the court made clear that to do so it was necessary to show the dog was "accustomed to bite mankind."¹³

However, a scant nine years later, the Alabama Supreme Court in Smith v. Causey, 22 Ala. 568 (Ala. 1853) began to retreat from the idea that a negligence action existed for the careless keeping of a dog as it stated:

At common law, where an injury to another arises from carelessness in keeping domestic animals, which are not necessarily inclined to do mischief, such as dogs, horses, &c., no recovery can be had against the owner, for an injury done by them, unless it is averred and proved that he knew their vicious propensities, and so carelessly and negligently kept them, that injury resulted to the plaintiff therefrom. (emphasis added)¹⁴

The explicit subsuming of all dog-related negligence claims under the scienter rule came in Owen v. Hampson, 258 Ala. 228 (Ala. 1952). The Owen court extended the scope of the scienter requirement beyond canine acts of viciousness to include those of mere "playfulness," stating:

Based on a review of our cases, as well as those from other jurisdictions, it is our opinion that the law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal's propensities.¹⁵ Crowley v. Groonell, 73 Vt. 45, 50 A. 546, 55 L.R.A. 876; State v. McDermott, 49 N.J.L. 163, 6 A. 653; Knowles v. Mulder, 74 Mich. 202, 41 N.W. 896; Hicks v. Sullivan, 122 Cal. App. 635, 10 P.2d 516; Mercer v. Marston, 3 La. App. 97; Hartman v. Aschaffenburg, La. App., 12 So. 2d 282.

Interestingly, the Owen court denies that this departure from the common law is an innovation in Alabama law, though they fail to cite any Alabama case law, and more curiously the court cites as part of its authority two Louisiana cases-a jurisdiction which has never adopted the Common Law of England in which the concept of scienter is rooted. The court's decision represents a failure to appreciate the etymological development of the word "mischief." Review of the earliest English dog-bite cases through early 20^th -century Alabama cases shows that "mischief" was employed as a term of art synonymous with viciousness, not the more modern sense of playfully annoying. The court's reading of "mischief" essentially ignored the traditional mens rea element of the scienter rule which, as late as Alabama Great Southern R.Co. v. Sheffield, 213 Ala. 15 (Ala. 1925), had the court likening the act of keeping a known vicious dog as the equivalent of harboring an outlaw. The Owen court likewise denied that liability could be found for negligently allowing a dog to escape (though quizzically in the quote, supra, they speak of "the duty of restraint"), thus implicitly closing the door to the negligence cause of action seemingly provided by Durden.

In 1969, the court of appeals in Reddett v. Mosley, 222...