Legal liability if a dog mauls or kills a burglar?

[Oakminster]

In my state, a dog that kills a burglar is considered a “GOOD DOG! YES YOU ARE! GOOD DOGGIE!” and likely eats steak that night. Of course, my home is insured by the firm of Smith & Wesson, Policy Number .357, so the bad guy is better off with the dog…

[alphaboi867]

This one time when I was about 5 or 6 my mom took me up to my grandparent’s lake cottage for a weekend. We had a big mutt at the time and took her with us. While she was unpacking groceries 2 Jehovah’s Witnesses (or possibly Mormons) came to the door for their usual proselytizing. My mom politely declined and asked them to leave. Then one of them stuck his foot in the door so she couldn’t close it. That set out dog off and she attacked him. He ended up in the ER and needed stitches. He sued, but it was thrown out of court as soon as the case went before a judge. Apparntly the judge ruled that because he stuck his foot in the door that was a threat against my mother and the dog was simply protecting her mistress.

[Gfactor]

@Polerius

How complicated ?

As you say, it is difficult to reconcile the two rules. See, e.g., Getzler, Joshua, Use of Force in Protecting Property: In memoriam J. W. H., 7 Theoretical Inq. L. 131 (2006) (“Further issues of line-drawing arose from man-traps that did not threaten grievous bodily harm, and from fierce guard dogs that did.”)

Consider the rationale for the rule against spring guns:

@Katko v. Briney

Prosser on Torts, Third Edition, pages 116-118, states:

“* * * the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that **there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify self-defense. ** * * * spring guns and other man-killing devices are not justifiable against a mere trespasser, or even a petty thief. They are privileged only against those upon whom the landowner, if he were present in person would be free to inflict injury of the same kind.”

Restatement of Torts, section 85, page 180, states: “The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. * * * A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.”

In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: “The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, but only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only - even a theft of property - the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable even to a thief who is injured by such device.”

(Emphasis added).

An attack dog looks a lot like a man-killing device. Of course, the dog has one thing that the spring gun does not: It barks (most do, anyway). Therefore, it offers a sort of automatic warning in many cases. As Getzler notes:

Notice of the danger set by the owner was often sufficient to dispel liability, on the ground that the intruder had caused his own misfortune. . . .
Later cases blurred the rule that hazards could only be laid defensively with ample notice, but still an important line had been drawn restricting use of violence against trespassers.

(Footnotes omitted).

Notice is important, then, and could somewhat justify the distinction.

Other courts (we’re still talking about courts) have distinguished dogs from spring guns based on the expected harm to the plaintiff:

In Bramble v. Thompson, the court of appeals contrasted the quintessential willful and wanton act of placing a “spring gun” on one’s property with the case at bar, where a trespasser was attacked by a dog belonging to the land owner and known by its owners to be vicious. The court concluded that the key factors in the decision were the probability and severity of the risk to which the trespasser would be exposed, and the landowner’s intent in creating the hazardous condition. According to the court, the act of placing a spring gun on one’s property “is more than likely to take human life,” and “is placed, not for the purpose of warning others off, but with the design to do them great injury … .” In contrast, courts have ruled that owners are not liable where trespassers are bitten by dogs maintained on the property, even though the owners are aware of the dog’s vicious nature, or that the erection of a nearly invisible chain without warning signs or reflectors across a right of way is not actionable, even though the owner was aware that trespassers were likely to ride motorcycles across the property and had done so in the past.

Sergent, Randolph, Gross, Reckless, Wanton, and Indifferent: Gross Negligence in Maryland Civil Law, 30 U. Balt. L. Rev. 1 (2000).

Obviously there is some tension in each of these theories. The first suggests that a beware of dog sign ought to excuse the defendant from liability and a beware of spring gun sign should function similarly:

In modern times, liberalized New York liability law generally compels the prudent NY land-owner to post a reasonable “warning” of non-obvious hazards even to trespassing intruders, in order to enable the trespassers to make an informed decision as to whether they really do want to Create and Assume the Risk of injuring themselves upon the property. For example, signs warning: “Keep Out: Spring Guns Concealed on Premises”, or “Keep Out: Beware of Man-Eating Dogs” (or “Angry Bulls”, “Head-Kicking Horses”, “Rabid Attack-Porcupines,” “Thorny-Locust Trees,” etc) would give Trespassers the opportunity to Knowingly Create and Assume the Risk of being shot, or eaten alive (etc.) during their defiant trespasses. This important principle of private property rights, reflecting “society’s explicit recognition of a person’s authority to act as he wishes in certain areas [and] the owner’s right to prohibit entry” (People v. Scott, above), is illustrated in the case of Weber v. Bob & Jim, Inc., 59 Misc. 2d 249; 298 N.Y.S.2d 854 (Sol. Wachtler, J. 1969), decided by (future-chief-justice) Sol. Wachtler, J.

In the Weber case, the premises where the dog-bite occurred contained a small business office located in one corner thereof. The owner of the premises knew the dog had vicious propensities and with such knowledge, permitted the dog to be located upon the defendant’s premises, which were not enclosed. A sign reading “Beware of Dog” was placed on the building. The property was open to the street on which the property faced. The trespassing plaintiff was bitten when he unlawfully used the defendant’s property, which was about 50 feet in width and 100 feet in depth, as “a short cut” to his home. The court summarily dismissed the plaintiff’s suit, explaining: “The dog was secured by a heavy chain approximately 12 feet in length. This tether prevented the dog from going beyond the property of the defendant and that one of the facts which precipitated the incident was the trespassing of the plaintiff on this property. Even if we were to assume the vicious propensities on the part of the dog, it is the opinion of the court that the owner acted in a reasonably prudent manner by posting signs [e.g., Beware of Dog] and by chaining the animal within the confines of his property. The plaintiff was a trespasser and in the court’s opinion placed himself in a dangerous position which not only precipitated but invited the contact and subsequent injuries. … The court does not suggest that the defendant owed no duty whatsoever to the plaintiff even as a trespasser; however, it is of the opinion that this duty was amply discharged by the posting of signs and the tethering of the animal. Plaintiffs have failed to sustain the burden of proving negligence on the part of the defendant and accordingly the complaint is dismissed.”

Thus, it seems, that in addition to “confining” a ferocious animal (e.g., by fencing or by “tethering”) upon his premises, a prudent New York land-owner will also be expected to “post signs” generally warning potential trespassers of peculiar non-obvious risks inherent in trespassing (entering) upon that particular land. Apparently, the signs need not explicitly state that “Trespassers Assume the Risk of Being Bitten and/or Eaten Alive by Ferocious Dogs Kept unattended On this Land.” But, presumably that kind of explicit warning, giving notice of the type of Risks to be Created and Assumed by Trespassers would be more than sufficient to give a Trespasser the ability to consciously choose (Or Choose Not) to Create and Assume those Risks by knowingly “plac[ing] himself in a dangerous” place. A warning gives the potential intruder personal responsibility for his own decisions.

Ferran, Mark, Rights of NY Landowners to Use Force (Display Guns) to Stop, Detain, Expel and Arrest Defiant Trespassers (or suspected Land-Thieves, etc.): http://billstclair.com/ferran/righttouseforce.html

The second rationale (expected harm) also falls flat. Courts have held that dogs can be deadly weapons. State v. Cook (N.C. Ct. App 2004): NC Court Cases: Find NC Opinions at FindLaw. Of course, guns easily fit the definition. But again, the two things are more alike than different. But see, Tipton v. Town of Tabor, 997 SD 96; 567 N.W.2d 351; 1997 S.D. LEXIS 96 (1997) (Municipal defendants lacked actual knowledge that privately-owned wolf-German Shepherd hybrids were dangerous animals): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=sd&vol=1997_096&invol=1

So where does that leave us? Part of the reason for the distinction probably simple tradition. The other part is probably based on implied motives. A theme that runs through the cases is the distinction between a deterrent and a trap. Spring guns with no warning are not intended to deter crime, but to trap or punish the criminal.

@Getzler quoting Best

In general, spring guns have been set for the purpose of deterring; the Defendant placed his for the express purpose of doing injury; for, when called on to give notice, he said, “If I give notice, I shall not catch him.” He intended, therefore, that the gun should be discharged, and that the contents should be lodged in the body of his victim, for he could not be caught in any other way.

As I mentioned before, a dog that barks naturally serves as a deterrent. Moreover, the defendant can claim that the dog lived in the house–it wasn’t placed there to attack anyone. A defendant who places a spring gun without warning lacks this explanation.

There is also a sort of historical explanation based on the reasons for the specific statutes. First dog bite statutes. These generally impose strict liability on a defendant whos dog bites someone. These statutes were enacted to abolish the so-called first bite rule. At common law, you see, a dog owner was only liable if it could be proven that the owner know of his pet’s dangerous propensities. This resulted in dog owners getting the first bite for free. The first time the dog bit someone, the owner could argue that she had no idea the dog was dangerous. The second time around, the defense was unavailable. Many found this unfair to the first bitten. The statutes impose “strict liability,” liabiity without fault, on the dog owner.

When these statues were enacted, legislatures had to anticipate hard cases. What if the plaintiff provokes the dog? What if the plaintiff invades the dog’s territory? They built exceptions into the statute, and some built in exceptions for trespassers and felons. Call it modernization. They didn’t want to give these individuals the benefit of the strict liability provisions.

Some of these statutes displace the common law rule entirely (so you have to fit your case into the statute to recover); other statutes merely eliminate a barrier (proof knowledge of the dog’s viciousness) to recovery for those who fit under the statutes. In these latter jurisdictions, a plaintiff can still try to prove that the defendant acted in a culpable fashion. So if you happen to be bitten while trespassing in one of those states, you might be able to recover, but the defendant will not be strictly liable–you will have to prove some level of fault.

Spring guns, on the other hand, are known to be dangerous. In some states, it is a crime to set one. There was no need for strict liability statutes. So they didn’t get updated like the rules for dogs. This left it to the courts to continue crafting rules about when a property owner may set a spring gun. As some of the links I have posted indicate, some lawyers think (and some cases say) that a property owner might not be liable to a trespasser for spring gun-related injuries if the owner posts sufficient warnings. The cases just don’t come up that often.

Complicated enough for you?

[mks57]

Now all I need is a moat and a few salt-water crocodiles. That will keep those damn kids off my lawn.

[Gfactor]

In England,

@Getzler

Automatic devices to shoot intruders were banned in an 1828 statute, but an exception was made allowing lethal devices to be set to protect dwellings against felons. In particular, devices could be placed in a house between sunset and sunrise as a protection against burglars.

Getzler cites Spring Guns and Man Traps Act, 1828, § 12 (Eng.)

But he continues: “Presumably, a legally set gun that shot a non-felonious entrant would bring criminal liability to the householder.”

[Elendil_s_Heir]

@alphaboi867

This one time when I was about 5 or 6 my mom took me up to my grandparent’s lake cottage for a weekend. We had a big mutt at the time and took her with us. While she was unpacking groceries 2 Jehovah’s Witnesses (or possibly Mormons) came to the door for their usual proselytizing. My mom politely declined and asked them to leave. Then one of them stuck his foot in the door so she couldn’t close it. That set out dog off and she attacked him. He ended up in the ER and needed stitches. He sued, but it was thrown out of court as soon as the case went before a judge. Apparntly the judge ruled that because he stuck his foot in the door that was a threat against my mother and the dog was simply protecting her mistress.

Thanks, Gfactor, for the correction to the Ohio Revised Code cite. Much obliged.

Alphaboi867, the Rhines v. Bailiss case which I mentioned was very similar to this (it was even about a Jehovah’s Witness being bitten!), with the crucial distinction that the JW was attacked without warning by the dog as soon as she set foot on the property. Homeowner did not have a “no solicitors” sign, and the court held that the JW had a limited First Amendment right to be on the premises for religious proslytizing (sp?) unless and until asked to leave.

[medstar]

@ralph124c

So (legally speaking) are you better off if you KILL or wound an intruder? If he is dead, he cannot sue you, and you can claim self-defense. But I cannot see anything worse for you, should your dog injure a burglar-you will be sued, and in all likelyhood, be stripped of your assests by the injured party.

What you could do is counter-sue the burglar. I realize it would be expensive, but maybe this could make the burglar realize he won’t get anything out of you without a fight. Not an ideal solution for a bad situation.

[dougie_monty]

@Elendil's Heir

Thanks, Gfactor, for the correction to the Ohio Revised Code cite. Much obliged.

Alphaboi867, the Rhines v. Bailiss case which I mentioned was very similar to this (it was even about a Jehovah’s Witness being bitten!), with the crucial distinction that the JW was attacked without warning by the dog as soon as she set foot on the property. Homeowner did not have a “no solicitors” sign, and the court held that the JW had a limited First Amendment right to be on the premises for religious proslytizing (sp?) unless and until asked to leave.

Crucial distinction is right. When I was going door-to-door, the notion of putting a foot in the door was unthinkable to me–and it had been unthinkable, years before, when religion was not what prompted me to go door to door (not exactly–I was just looking for work to do to earn spending money, when I was in junior high school). I’ve been bitten by dogs so I will not tempt fate by sticking my foot in the door–and, I must point out, so far as I know NOBODY ELSE coming up to a stranger’s door has tried this!
There are other people who might come to your door:
Relatives or friends who couldn’t reach you–maybe your phone was out of order.
A polite stranger asking directions.
A passerby telling you your house is on fire.
A person who has just suffered injury or robbery and needs help.
Are you civil enough to find out what they want, or do you play macho king-of-the-hill and sic your dogs on them? I know California law doesn’t condone that!

[Cliffy]

One clarification about the first-bit rule (at least how I learned it). The first bite isn’t free, it’s just not strict liability. At common law, strict liability is the standard we use for dangerous animals kept on the property, and it makes the owner liable for any injury his, say, pet lion causes to non-tresspassers, even if he took appropriate precaution. Because having a lion is so inherently dangerous, that we’re not going to examine whether you were safe enough and just hit a patch of bad luck – you have a lion, you’re on the hook for injuries, period.

Whereas most unintentional torts sound in negligence – it’s not enough to accidentally injure someone; you’re only liable if you carelessly injure him. For run of the mill situations, society does not require you to take absolute precaution, just reasonable precaution. If you do that, yet those precautions fail to prevent injury in a freak circumstance, you’re not going to be held liable.

So the question had been, are dogs inherently dangerous animals (subjecting owners to the strict liability standard) or are they not inhernetly dangerous, such that owners who take reasonable precaution to prevent their dog from biting are protected. And that’s the circumstance of the common-law first-bite rule – any given dog was presumed to be tame, and therefore injuries he caused sound in negligence. But once he’s bitten the first person, the owner knows he’s a biter, and so society considers him a dangerous animal, so future bites sound in strict liability.

–Cliffy

[ricksummon]

@Cliffy

Because having a lion is so inherently dangerous, that we’re not going to examine whether you were safe enough and just hit a patch of bad luck – you have a lion, you’re on the hook for injuries, period.

But what if 1) you own a zoo or a circus, so you could reasonably be expected to own a lion, 2) someone attempts to break into the lion cage to steal the creature, and 3) the tranquilizer darts the thief bought weren’t exactly up to standard? If the lion rips the thief a new one, are you liable?

[Leo_Bloom]

@ricksummon

But what if 1) you own a zoo or a circus, so you could reasonably be expected to own a lion, 2) someone attempts to break into the lion cage to steal the creature, and 3) the tranquilizer darts the thief bought weren’t exactly up to standard? If the lion rips the thief a new one, are you liable?

If the thief is a woman during her period, she’s a goner. I know this from a close family member who was mauled. Just mentioning. Thread can continue now as before…

[DoperChic]

What if it’s a zombie dog? Will he just go after your brains?

[MichaelQReilly]

@Gfactor

As you say, it is difficult to reconcile the two rules. …

Great summary. This whole thing is best understood as a “legal fiction.” That is, where we treat things that are essentially the same as different in order to preserve logical consistency but prevent unwanted outcomes.

A good example of this can be seen in the way the law handles the removal of life support. Traditionally, murder was defined as an intentional act, done with the intent to cause death or grievous bodily harm, which does in fact cause death. You can see that if that if you applied that definition to a doctor removing someone from life support, we would have to start convicting doctors of murder. So instead, a legal fiction is employed that says that when the Doctor is providing the life support he is already acting, so that when the Doctor withdraws life support he is actually ceasing to act. Therefore there is no act, and the criteria necessary for murder aren’t present.

It’s obviously silly, but sometimes it’s necessary to prevent a strict application of the law from reaching outcomes that we don’t want. Thus, we say that doctors aren’t acting even when they clearly are because we don’t want to stop doctors from doing their job. Similarly, the guard dog is well-established part of our society, so we say that it is different from a spring gun even if people employ the two for essentially the same reason.

[Sailboat]

@Gfactor

Vicious Dogs (same)

Criminal Penalties for a Dog Bite (criminal liability)

It’s worth noting that many dog people (myself included) consider that site pretty biased against dogs. It looks like it was created to drum up lawsuits, the Internet version of ambulance chasing.

[billfish678]

@Sailboat

It’s worth noting that many dog people (myself included) consider that site pretty biased against dogs. It looks like it was created to drum up lawsuits, the Internet version of ambulance chasing.

It may well be. But they have actual cites for most of their “info”. Like the CDC for example. You need to refute those methinks. You can be “antidog” and actually be mostly factual about it you know. They certainly arent rabid anti-dog for instance. There is a decent little article about how rotweilers and pit bulls cause the majority of major injuries/deaths despite their small numbers, yet the author does NOT call for some knee jerk reaction to ban those breeds (which I think indicates at least a little bit of intellectual honesty is present there).

Back to the thrust of this thread.

Folks have noted the difference between a man killing booby trap and a dog. Mainly that with a dog you have chance, it will give you warning, it probably won’t kill you, if you can get away you’ll avoid the encounter or at least likely live to tell the tale and stuff like that.

Butttt…you could bred and train a dog (or more likely a pack of em) that was for all practical purposes the same as a deadly booby trap.

Anybody want to comment on that?