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…
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.
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:
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 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:
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:
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): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals2004/&invol=030396-1. 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.
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?
Now all I need is a moat and a few salt-water crocodiles. That will keep those damn kids off my lawn.
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.”
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.
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.
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!
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.
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…
What if it’s a zombie dog? Will he just go after your brains?
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.
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?