Legal liability if a dog mauls or kills a burglar?

[MikeS]

The following question popped up on another message board I frequent, and I figured the legal eagles here might find it interesting.

Suppose I own a Doberman. While I’m at work one day, a burglar forcibly enters my house. My dog, territorial creature that he is, attacks the burglar and severely wounds him. Would I have any criminal liability in this incident? How about civil liability? What if the dog actually manages to kill the burglar? I understand that the answer’s probably “it depends”; I’m curious, though, as to what it depends on.

This is all entirely hypothetical, of course. I don’t even own a dog. Or a house. Any answers below will not be construed as legal advice.

[vetbridge]

Interesting question. As far as civil suits, I guess the thing is that anyone can sue over any issue. One of the police dogs I work on was given ten days off while he was being treated for stomatitis (an oral bacterial infection). Counsel for the city suggested the dog not work until the infection resolved due to his concern over increased liability should the dog bite a criminal while his mouth was infected.

A colleague of mine was sued years ago when the attack dog he employed (it was dropped off at closing time and picked up in the morning) attacked an intruder. The intruder claimed he wasn’t breaking in, rather he thought it was an old friend’s place and he was just going in to visit. My colleague was vindicated in court, but it cost him $$ to present his defense.

Hope to see a lawyer’s input.

[Gfactor]

Here is a good start: Dog Law :: Dog Bites > A Dog Owner's Legal Defenses :: DogLaw.HugPug.com (it depends)

http://www.dogbitelaw.com/PAGES/danger.htm (same)

Criminal Penalties for a Dog Bite - Dog Bite Law (criminal liability)

Detailed Discussion of Dog Bite Laws | Animal Legal & Historical Center

Articles | Animal Legal & Historical Center (summary of dog bite strict-liability statutes)

http://recenter.tamu.edu/TGrande/vol11-3/1683.html

[Gfactor]

In this case the plaintiff went to the defendant’s business premises to install auto glass. His instructions were: “MOBILE FOR
FRIDAY, GARAGE AVAIL. ABOVE ADDRESS GO TO FRONT OFFICE NOT GARAGE (DOGS IN GARAGE).” Despite the warning, he went into the garage. The court found:

when Arnett ventured into the garage without permission or invitation, he
exceeded the scope of his invitation and became a trespasser in that
particular area. Constantineau v DCI Food Equipment, Inc, 195 Mich App 511,
515-516; 491 NW2d 262 (1992). Arnett’s invitation onto defendants’
premises, as reflected in the work order, was expressly limited to entering
the building through the front office. Importantly, the work order
explicitly directed him not to enter the garage. Plaintiffs have offered no
evidence to rebut defendants’ contention that Arnett was never given
permission to enter the garage, and under these circumstances, permission
cannot be implied. Alvin, supra at 421.

Further, even if we were to accept Arnett’s argument that he was
invited into the bay storage area by another employee, the employee did not
direct Arnett to enter the front office through the interior of the
building. Instead, the employee specifically advised Arnett that if he did
not see the automobiles he was supposed to work on in the bay storage area,
he should proceed to the front office for assistance. These instructions,
considered in the context of a work order which unequivocally directed
Arnett to enter the building through the front office door, and further
advised Arnett not to enter the garage where the dogs were located, cause
us to conclude that Arnett exceeded the scope of his invitation onto
defendants’ property and he became a trespasser when he entered the garage.
Accordingly, Arnett is precluded from recovering for his injuries under the
dog-bite statute as a matter of law, Constantineau, supra at 515-516, and
the trial court properly granted summary disposition to defendants.

---

In general, the law does not impose a duty on landowners to maintain
their premises in a safe condition for trespassers. Wymer v Holmes, 429
Mich 55, 71, n 1; 412 NW2d 213 (1987); Byrne v Schneider’s Iron &Metal,
Inc, 190 Mich App 176, 183; 475 NW2d 854 (1991). Those who venture into an
area without permission or invitation must accept the responsibility for
any resulting injuries. Constantinueau, supra at 515. However, if a
landowner knows or has reason to know that a trespasser is present, the
landowner has a duty to use ordinary care to prevent injury to the
trespasser from active negligence. Torma v Montgomery Ward & Co, 336 Mich
468, 476-477; 58 NW2d 149 (1953); Blakeley v White Star Line, 154 Mich 635,
637; 118 NW 482 (1908). Here, in light of defendants’ explicit instruction
to Arnett not to enter the garage and their warning to Arnett of the
presence of the dogs in the garage, we reject plaintiffs’ argument that
defendants should have known that Arnett would enter the garage and be
confronted by the dogs.

Michigan Legal Research & Court Cases: Find MI Opinions at FindLaw

[Elendil_s_Heir]

Good question. I suspect the dogowner would not be liable in most states, although as noted above, he might have to pay his own legal fees if sued.

Ohio has a strict-liability dog-bite statute under which the dog’s owner is liable for any injuries caused by his or her pooch unless the person injured was either trespassing, or was provoking the dog. R.C. 955.25(B); Rhines v. Bailiss, 2004 CVI 20228 (Cleve. Muni. July 22, 2005)(unreported). A burglar - or one who has a lame excuse for being in the house but may reasonably be presumed to be a burglar, but was in any event trespassing - could not collect from the dogowner.

[Gfactor]

[QUOTE=Elendil’s Heir]
R.C. 955.25(B)
[/QUOTE]

[Minor Quibble]I think you’ve got the wrong cite there. Here’s what I find when I look up 955.25:

§ 955.25. Unlawful tag.

No person shall own, keep, or harbor a dog wearing a fictitious, altered, or invalid registration tag or a registration tag not issued by the county auditor in connection with the registration of such animal.

HISTORY: GC § 5652-15; 107 v 534; 108 v PtI 534; 112 v 347; Bureau of Code Revision. Eff 10-1-53.

Ahh, it’s 955.28:

§ 955.28. Dog may be killed for certain acts; owner liable for damages.

(B) The owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog, unless the injury, death, or loss was caused to the person or property of an individual who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, keeper, or harborer, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog on the owner’s, keeper’s, or harborer’s property.

[/Minor Quibble]

Ohio courts seem to agree that the statute is the sole remedy for dog bites (an injured party may no longer sue for common law negligence). Therefore, it seems pretty clear that in Ohio a trespasser (burglar) cannot recover for a dog bite.

[Polerius]

I have a related question.

Legally, what is the difference between having a booby trap and an attack dog in your house?

AFAIK, a booby trap is illegal just about everywhere, because it does not distinguish who it kills/injures (say, a little child walked into your house)

But, an attack dog similarly does not distinguish who it kills/injures.

So, what is the legal basis for treating these two differently?

[Gary_T]

[QUOTE=Polerius]
I have a related question.

Legally, what is the difference between having a booby trap and an attack dog in your house?

AFAIK, a booby trap is illegal just about everywhere, because it does not distinguish who it kills/injures (say, a little child walked into your house)

But, an attack dog similarly does not distinguish who it kills/injures.

So, what is the legal basis for treating these two differently?
[/QUOTE]

For starters, a booby trap has no other purpose than the intentional injury of intruders, whereas there are other legitimate (and mostly benign) reasons to have a dog. There’s a rough parallel with the heavy regulation of handguns (designed essentially to kill/injure people) compared to the minimal regulation of knives (potentially lethal, but with many legitimate and mostly benign uses). Dog breeds that are recognized as closer to the “attack” end of the spectrum than to the “pet” end are similarly more tightly regulated in many areas. Further, an undisclosed booby trap yields little opportunity to avoid its attack, while a dog typically gives some warning of its presence and can often be avoided or neutralized, especially by “authorized” intruders such as police and fire personnel. And a dog can more reasonably be considered a deterrent, where booby traps are inherently retaliatory.

[Polerius]

[QUOTE=Gary T]
For starters, a booby trap has no other purpose than the intentional injury of intruders, whereas there are other legitimate (and mostly benign) reasons to have a dog. There’s a rough parallel with the heavy regulation of handguns (designed essentially to kill/injure people) compared to the minimal regulation of knives (potentially lethal, but with many legitimate and mostly benign uses). Dog breeds that are recognized as closer to the “attack” end of the spectrum than to the “pet” end are similarly more tightly regulated in many areas. Further, an undisclosed booby trap yields little opportunity to avoid its attack, while a dog typically gives some warning of its presence and can often be avoided or neutralized, especially by “authorized” intruders such as police and fire personnel. And a dog can more reasonably be considered a deterrent, where booby traps are inherently retaliatory.
[/QUOTE]

What if I advertise the booby trap, loud and clear, and what if the booby trap is of a type that can be neutralized by police and fire personnel?

Then, its purpose is more as a deterrent, and not retaliatory, and becomes more similar to an attack dog guarding your house.

[Giles]

[QUOTE=Polerius]
What if I advertise the booby trap, loud and clear, and what if the booby trap is of a type that can be neutralized by police and fire personnel?

Then, its purpose is more as a deterrent, and not retaliatory, and becomes more similar to an attack dog guarding your house.
[/QUOTE]

Right – so it’s the middle of the night, and your house is on fire, and fire fighters come in unable to read your sign, and looking to see if there’s someone asleep in the house?

[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.

[vetbridge]

When this topic comes up I always wonder about inadvertent booby traps of the Home Alone variety. The skateboard left on the stairs, the rake left tines up on the ground, etc.

[Gfactor]

[QUOTE=Polerius]
I have a related question.

Legally, what is the difference between having a booby trap and an attack dog in your house?

AFAIK, a booby trap is illegal just about everywhere, because it does not distinguish who it kills/injures (say, a little child walked into your house)

But, an attack dog similarly does not distinguish who it kills/injures.

So, what is the legal basis for treating these two differently?
[/QUOTE]

In states like Ohio with a statute that exempts the dog’s owner from liability to trepassers, there is no need to make the distinction. Trespassers can’t sue because the statute says so. If you are asking why the legislature saw fit to exempt dog owners from liability for attack dogs on their own property, but not property owners from liability for spring guns, it gets more complicated.

[Carnacki]

[QUOTE=MikeS]
Suppose I own a Doberman. While I’m at work one day, a burglar forcibly enters my house. My dog, territorial creature that he is, attacks the burglar and severely wounds him. Would I have any criminal liability in this incident? How about civil liability? What if the dog actually manages to kill the burglar? I understand that the answer’s probably “it depends”; I’m curious, though, as to what it depends on.
[/QUOTE]

(IANAL)
Specifically regarding your civil liability question:

Some states (not necessarily yours, but California for instance) bar a person from bringing a civil suit if the injury they’re complaining of came about during the commission of a felony (or certain enumerated felonies, depending on the statute).

So back to your specific example, if the person was committing a felony burglary, and if there is such a statute in your jurisdiction, then you likely wouldn’t have to worry about civil liability.

Another “it depends on” factor might be whether or not the animal is known to have a propensity for violence. For dogs, some states have a one-bite rule: i.e., if the doberman has bit someone before, it has a “known propensity for violence” (which doesn’t necessarily = liability, it’s just a factor). Others (such as California) have no such rule. Yes, that chihuahua has a known propensity for violence, for the purpose of this factor.

As always, consult a real attorney before training your doberman to viciously kill intruders.

On preview, a lot of this was brought up already by others. It looks like some states don’t even require it be a felony, but any criminal activity on the part of the plaintiff.

ralph124c - Most (maybe all?) states have statutes that will let the estate of the deceased sue you. That said, your claim may be true only insofar as it is difficult for the estate to prove it’s case, especially if you’re planning on being less than honest about what happened.

–KidScruffy

[Polerius]

[QUOTE=Gfactor]
If you are asking why the legislature saw fit to exempt dog owners from liability for attack dogs on their own property, but not property owners from liability for spring guns
[/QUOTE]

Yes, this is what I am asking.

it gets more complicated.

How complicated ?

[Hostile_Dialect]

You (the hypothetical you, that is) could just leave a waiver form next to your “No Trespassing” plate for burglars to sign.

@KidScruffy

On preview, a lot of this was brought up already by others. It looks like some states don’t even require it be a felony, but any criminal activity on the part of the plaintiff.

So if you’re smoking pot in a ditch that doesn’t sit on private property, and a dog gets loose from a nearby house and bites you, where do you stand?

[vetbridge]

[QUOTE=fetus]
So if you’re smoking pot in a ditch that doesn’t sit on private property, and a dog gets loose from a nearby house and bites you, where do you stand?
[/QUOTE]

In the ditch?

[Hostile_Dialect]

[QUOTE=vetbridge]
In the ditch?
[/QUOTE]

Trick question–you don’t stand until you’re in the hospital.

Seriously, though.

[rippingtons_fan]

Nothing happens, as long as nobody finds out! Too bad you couldn’t just sell (or give) his earthly remains to a medical school. If that’s not an option, bury him in your back yard! I’m sure there are many websites online that could tell you how to get rid of a dead body!

Just don’t tell the authorities!!! That’s just begging to have them slap the cuffs on you!!

[Carnacki]

[QUOTE=fetus]
So if you’re smoking pot in a ditch that doesn’t sit on private property, and a dog gets loose from a nearby house and bites you, where do you stand?
[/QUOTE]

I think what I said was a little unclear. The Ohio exception wouldn’t apply in your example, because it precludes liability of the dog-owner if the person is trespassing, or “committing or attempting to commit a criminal offense against any person”.
The law I was alluding to prevents someone who is injured while committing a felony from bringing a civil suit. Unfortunately I can’t find an example of such a law, so I’m not sure if it applies only if the injury is related to the felony. i.e., in your example if we change “smoking pot” to “using a laptop to hack into a bank’s computer and wire yourself a bunch of money”*, then I’m not sure if the dog owner is liable or not.

And for the record, I pass on grass… all the time.

• harder than it sounds.