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.
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.
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:
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.
[Minor Quibble]I think you’ve got the wrong cite there. Here’s what I find when I look up 955.25:
Ahh, it’s 955.28:
[/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.
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?
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.
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?
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.
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.
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.
(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.
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!!
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.
