Dog bite injury claims are treated uniquely in New Hampshire. In most personal injury cases, the plaintiff (injured person) can only recover compensation if they prove they were harmed because of the defendant’s negligence. To prevail on a dog bite claim, however, no proof of negligence is required. Rather, the owner of the dog is “strictly liable” for the victim’s injuries.
“Strict liability” means that a defendant is liable even if they didn’t “do anything wrong.” The plaintiff must simply prove that the defendant’s dog caused them injury.
Strict liability is rarely imposed, because the primary purpose of tort law (that is, personal injury lawsuits) is deterring persons from acting unreasonably. If someone injures someone else despite exercising due care, the law does not penalize the injuring party. For example, if you slip and fall on your friend’s driveway, the friend is not liable unless you can show they acted unreasonably in maintaining their property. Sometimes injuries happen and they are simply accidents: no one is “at fault.”
In the 1800s, New Hampshire dog owners could only be found liable for dog bites if it were proved that the dog had “vicious propensities” (e.g., it had bitten someone before) and that the owner of the dog knew about the dog’s vicious propensities. Allgeyer v. Lincoln, 125 N.H. 503, 506 (1984). Only then would the owner have a duty to prevent dog bites.
The New Hampshire legislature realized long ago that this standard was a high bar to meet for victims of dog bite injuries. As such, the legislature enacted RSA 466:19, which is the state’s dog bite statute.
RSA 466:19 provides:
Any person to whom or to whose property, including sheep, lambs, fowl, or other domestic creatures, damage may be occasioned by a dog not owned or kept by such person shall be entitled to recover damages from the person who owns, keeps, or possesses the dog, unless the damage was occasioned to a person who was engaged in the commission of a trespass or other tort. A parent or guardian shall be liable under this section if the owner or keeper of the dog is a minor.
The strict liability statute, however, is not unlimited. To start, a dog bite victim may not recover if they were attacked while “engaged in the commission of a trespass or other tort.” That section is relatively self-explanatory: a trespasser taking a shortcut through someone’s backyard or a burglar breaking into someone’s house would not be entitled to damages if they are bitten by a dog while committing those acts (the Supreme Court has clarified that someone on the dog owner’s property for a lawful purpose — such as a delivery person delivering a package — is not “trespassing” under the terms of the statute, and can thus recover under it, Frenette v. Gillis, 106 N.H. 210 (1965)).
A plaintiff might also not be able to prevail — or else, might have their recovery reduced — if their own actions played a role in the dog attack. For example, if a person is roughhousing with the dog or otherwise provoking it, the doctrine of “comparative causation” (typically known as comparative negligence) could reduce or bar the plaintiff’s damages. Bohan v. Ritzo, 141 N.H. 210, 216 (1996).
Additionally, strict liability under RSA 466:19 is limited to defendants who are the “owners, keepers, or possessors” of the dog in question. The meaning of these terms has been explored by the New Hampshire Supreme Court in several cases over the decades.
The “owner” of the dog is always liable under the statute, even if the dog bite happened when the dog was not in the owner’s care or possession. Gagnon v. Martin, 116 N.H. 336 (1976). The “owner” of a dog is the person or persons who have legal title over the animal. A dog is a kind of personal property, and thus ownership is determined in much the same way ownership of other kinds of property — like computers or cars — are determined. See State v. M’Duffie, 34 N.H. 523, 526 (1857); see also Hogan v. Hogan, 199 So. 3d 50, 56-57 (Ala. Ct. Civ. App. 2015) (describing factors in determining dog ownership).
Proving who the legal owner of a dog is can sometimes be difficult. As such, the dog bite statute also allows recovery against the “keeper” or “possessor” of the dog (of course, a plaintiff can only recover against one of these possible defendants, not all of them, Gagnon, 116 N.H. at 337).
The “keeper” of a dog is one who, although not the legal owner of the dog, exercises a “substantial number of the incidents of ownership.” Raymond v. Bujold, 89 N.H. 380, 382 (1938). A person is considered a “keeper” of the dog when that person is controlling or caring for the dog in the same manner an “owner” would typically act. Id. For example, regularly feeding the dog, walking it, or taking it to the veterinarian could be considered “incidents of ownership” sufficient to make someone the “keeper” of a dog. Lorrain v. Branscombe, 2012 U.S. Dist. LEXIS 10188, at *12 (D.N.H. Jan. 30, 2012); Rich v. Shevett, 2007 N.H. LEXIS 279 (N.H. Oct. 4, 2007). However, a person is not necessarily a “keeper” of a dog just because the dog is kept on his or her property. Raymond, 89 N.H. at 382. Further, someone is not a “keeper” when he or she “temporarily feeds or shelters it.” Id. On the other hand, a dog-sitter or doggy daycare provider apparently is a “keeper” within the meaning of the statute. Gagnon v. Frank, 83 N.H. 122, 123 (1927). Additionally, the Supreme Court has stated that if a property owner — although not owner of the dog itself — allows the dog to remain on the property as a member of the “family,” that person would be considered a “keeper.” Cummings v. Riley, 52 N.H. 368, 370 (1872).
Clearly, these cases are not entirely consistent. However, modern case law on the dog bite statute is relatively sparse. Although the New Hampshire Supreme Court has not explicitly decided the question, it does seem apparent that a mere landlord would not be considered a “keeper” of a dog under RSA 466:19. See Richards v. Leppard, 118 N.H. 666 (1978).
The term “possessor” has a meaning similar to “keeper.” It “implies the exercise of care, custody or control” over the dog in the same way an owner would act. Glidden v. Szybiak, 63 A.2d 233, 235 (N.H. 1949). The distinction between a keeper and a possessor is likely temporal: a “possessor” can temporarily have custody of a dog and be liable for injuries caused by it. See Raymond, 89 N.H. at 382. For example, someone who finds a lost dog and holds it for the owner is a “possessor,” not a “keeper.” Id. A friend who takes the dog for a walk may also be deemed only a possessor. On the other hand, a non-owner who exercises a pattern of care and control over the dog over a period of time or to a greater degree might qualify as a keeper.
Of note, RSA 466:19 allows the possessor of a dog to sue the owner/keeper for damages (the owners/keepers themselves have no claim under the statute). Id. at 383.
Although RSA 466:19 is a “strict liability” statute, the courts have not imposed liability in every situation where a dog causes injury to an innocent person. Rather, the New Hampshire Supreme Court has stated that the statute only applies when injury is caused by the “vicious or mischievous acts” of the dog in question. See Noyes v. Labrecque, 106 N.H. 357, 358-59 (1965). In Noyes, the plaintiffs brought a strict liability claim against the defendant dog owners because the defendants’ dog ran out in the road in front of the plaintiffs’ motorcycle. The Supreme Court affirmed the trial court’s dismissal of the case, concluding that the dog in question had not committed a “vicious or mischievous” act. See id. at 359.
However, the Supreme Court did allow recovery under RSA 466:19 in a similar incident years later. In Bohan v. Ritzo, 141 N.H. 210 (1996), the plaintiff was riding his bicycle down the road when a small white dog came towards him from the defendants’ driveway. The bicyclist attempted to avoid the dog, which he feared was coming to bite him. As a result, he lost control of the bicycle and crashed, suffering severe injuries.
The Supreme Court found that the dog’s behavior met the “standard of mischievousness” required under the dog bite statute. Id. at 213. The Court held that “nothing in the plain language of RSA 466:19 limits its application to situations where there is an actual bite or other direct physical contact.” Id. at 214.
The Court’s decision in Bohan did not mention Noyes or attempt to reconcile the two cases. The only distinction between the two cases appears to be that the plaintiff in Bohan believed the dog was going to bite him, whereas apparently the dog in Noyes merely ran out into the street in front of the plaintiffs. The Court in Noyes did say that “no vicious or mischievous acts . . . were alleged” in that case. There was no discussion, however, about why a dog running into the street was not a “mischievous” act.
In my opinion, a dog running out into the street in front of car is certainly a mischievous act under many circumstances. Most likely, the plaintiffs in Noyes simply did not adequately plead that mischievousness. Otherwise, the decisions in Noyes and Bohan would be difficult to reconcile. As the New Hampshire Supreme Court said in Bohan: “If the legislature intended to limit strict liability to cases where a dog’s vicious or mischievous acts include an actual dog bite or direct physical contact, it could easily have drafted the statute to do so. The legislature did not do so here, and we will not interpret the statute to expand the scope of the terms used.” Indeed, several other courts have held dog owners strictly liable when their dog runs out into traffic, causing an accident. See, e.g. Granniss v. Weber, 141 A. 877 (Conn. 1928); Tasker v. Arey, 96 A. 737, 738 (Me. 1916).
In fact, basic principles of statutory interpretation suggest that there should be no “vicious or mischievous” requirement at all to strict liability under RSA 466:19. Those terms are mentioned nowhere in the statute. The law simply says that victims of damage/injury caused by a dog “shall be entitled to recover damages” from the dog owner.
It is also arguable that a dog roaming at large (or escaped from its owner’s property) is now per se “vicious” under current law. RSA 466:31 provides that “a dog is considered to be a nuisance, a menace, or vicious to persons . . . if a dog is ‘at large,’ which means it is off the premises of the owner or keeper and not under the control of any person,” or if the dog “runs after, or chases, bicycles motor vehicles, [etc.].”
As noted above, historically dog bite victims would need to show that the dog owner was aware of the hound’s vicious propensities before liability would be imposed. While this category of liability is sometimes described as “negligence,” is really is a unique theory of common law liability relating specifically to animals. See Oliver v. Cook, 377 P.3d 265, 272 (Wash. Ct. App. 2016); Smith v. Benson’s Wild Animal Farm, 99 N.H. 243, 245 (1954).
The strict liability statute supplements, rather than replaces, common law theories. Giacalone v. Hous. Auth., 51 A.3d 352, 356 (Conn. 2012). As such, plaintiffs may advance multiple theories of liability. Hewes v. Roby, 135 N.H. 476 (1992). These theories may include more “general” theories of negligence, not specific to vicious animals. For example, allowing a pit bull to run at large without a leash — even if the dog was not previously known to be vicious — could constitute negligence. Smith, 99 N.H. at 246; Connell v. Putnam, 58 N.H. 335 (1878). It may even constitute negligence per se under RSA 466:31 or local leash laws like NRO 93-5 in Nashua. See Miller v. Hurst, 448 A.2d 614, 618 (Pa. Super. Ct. 1982).
Property owners could also be subject to negligence liability under ordinary premises liability principles. “Under New Hampshire law, premises owners are governed by the test of reasonable care under all the circumstances in the maintenance and operation of their premises.” Rallis v. Demoulas Super Mkts., 159 N.H. 95, 99 (2009). The property owner/landlord will have a duty to prevent injury if such injury is a foreseeable risk. Pesaturo v. Kinne, 161 N.H. 550, 555 (2011). The New Hampshire Supreme Court has held that a property owner can be liable for injuries caused by animals under premises liability principles, Sleeper v. World of Mirth Show, 100 N.H. 158, 161 (1956), even if the animal in question is not known to be vicious. Smith, 99 N.H. at 246.
A landlord may also be liable if a tenant’s dog bites a visitor or passerby. In New Hampshire, landlords are subject to the same rules of reasonable care “under all the circumstances” as other landowners. Sargent v. Ross, 113 N.H. 388, 397-98 (1973). A landlord has the duty to “remedy or warn of a dangerous condition of which he knows or in the exercise of reasonable care should know.” Rallis, 159 N.H. at 99. “Whether a dangerous condition is created by rats, snow, rotting wood or vicious dogs, these differing facts present no fundamental ground of distinction.” Giacalone, 51 A.3d at 356. The doctrine of premises liability, therefore, “certainly is capacious enough readily to encompass threats from animals, including known vicious dogs.” Id.; Gentle v. Pine Valley Apartments, 631 So. 2d 928, 934 (Ala. 1994) (“[T]he presence of a tenant’s vicious dog . . . constitutes a ‘dangerous condition’ and . . . a landlord must exercise reasonable care to prevent injuries from such a dangerous condition. In so holding, we do no more than apply ordinary negligence principles, analogizing this particular condition to a variety of comparable dangers traditionally triggering the duty of due care.”).
Multiple trial courts in New Hampshire have therefore allowed plaintiffs to sue landlords for dog bite injuries caused by a tenant’s dog under a negligence theory. See, e.g., Roland v. LeBlanc, 1995 U.S. Dist. LEXIS 22994, at *9 (D.N.H. Oct. 11, 1995); Young v. Morse, Hills. Cty. Super. Ct. N. Dist., No. 00-C-821 (Aug. 6, 2001) (Lynn, J.).
Dog bites are typically covered by a dog owner’s liability insurance through a homeowners or renters policy. Hopefully, the dog owner has insurance and a claim can be made accordingly. If there is no insurance coverage, a prompt investigation of the dog owner’s assets is prudent. Dog bite victims should also assess whether other possible defendants exist, such as a property owner or landlord.
As with all personal injury cases, dog bite victims are entitled to recover damages for their medical bills, pain and suffering, loss of enjoyment of life, lost wages, and permanent injury. This last category is important in dog bite injury cases, because dog bites often result in permanent scarring. The law recognizes that scarring can have a significant negative impact on a person’s physical and psychological well-being.
If you were injured by a dog bite, you should consult with a lawyer about your options. If possible, get the dog owner’s homeowners/renters insurance information. It is also a good idea to ask the police to investigate the incident because they will document the event and confirm whether the dog is up to date on vaccinations.
The attorneys at Welts, White & Fontaine, PC have decades of experience in personal injury law. We offer free consultations, and you don’t pay attorney’s fees unless you get a successful recovery. Welts, White & Fontaine is Nashua’s largest law firm and serves clients statewide. To discuss your case with one of our attorneys, please call us at (603) 883-0797 or contact us here.
Author: Israel F. Piedra
This blog is intended for informational use only. The information contained herein should not be construed as offering legal advice or a legal opinion.