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Liability for Dog Bites under Washington Law

Posted Wednesday, October 1, 2014 by Christopher L. Thayer

alt textDog bite injuries are unfortunately a fairly common occurrence. These injuries can be quite severe, gruesome, and are frequently complicated by infection. We often get questions about what your options may be if you have been bitten by a dog; or, as a dog owner, what you can do to protect others.

Pursuant to RCW 16.08.040:

(1) The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner’s knowledge of such viciousness.

Under prior common law, an owner was generally only liable for a dog bite, if it could be shown that the owner “knew or should have known” of the vicious or dangerous propensities of the animal. This was often, unfortunately, referred to as the “one free bite” rule. Meaning, that once a dog bit or injured someone, the owner was then on notice of the possible “vicious or dangerous” propensities. However, for the first bite, assuming no other evidence of the dog being dangerous prior to that incident, there might not be any liability and the injured party might not have any means of recovery.

Recognizing it is often difficult to prove evidence of a past dangerous propensity, the Washington legislature enacted RCW 16.08.040. RCW 16.08.040 essentially eliminated the “one free bite” rule. Instead, a dog owner is now held to be strictly liable for damages caused by the owner’s dog. For the statute to apply, the victim must be in a public place or “lawfully in or on a private place”, which includes the dog owner’s property. The strict liability applies regardless of whether the owner knew of the dog being dangerous or having any propensity to bite.

Often, the controlling issue is whether the victim had permission to be on the property where the dog was located. Washington courts have looked to defined being on certain property “lawfully” based on whether there was express or implied consent. Express consent is usually clear, indicating that the injured party had permission to be on the property. Implied consent comes from conduct and surrounding circumstances. Washington courts have held that, absent other compelling circumstances, if a dog is on the owner’s property and the property is fenced with a warning about the presence of a dog, then there is no implied consent to be on the owner’s property and the strict liability of RCW 16.08.040 may not apply. This does not necessarily preclude liability of a dog owner, however.

If strict liability of the statute does not apply, then principles of common law negligence theory come into play, and an owner may be liable where “there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence.” What constitutes “reasonable care” will vary by circumstances, including the past behavior of the animal and whether injury could reasonably be foreseen.

As a dog owner, you should make sure your dog is contained in a fenced yard, and place warning signs conspicuously to notify any possible visitors of the presence of a potentially dangerous dog. This provides some level of insulation from liability, but only for those visitors who do not otherwise have your express or implied permission to be on your property. Understand that this will not necessarily protect you from liability, and ultimately it is your responsibility to take appropriate action.
If you or a loved one have been bitten by a dog and seriously injured, please contact Chris Thayer at 206-805-1494 or CThayer@PivotalLawGroup.com

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