Torts

Dog Nips Cow, Cow Tramples Man

If a statute imposes strict liability for dog bites, does that extend to a herding dog nipping at a cow that then trampled the plaintiff?

|The Volokh Conspiracy |

From Smith v. Meyring Cattle Co., an interesting tort and statutory interpretation case decided a week ago by the Nebraska Supreme Court; the case is interpreting Nebraska Revised Statutes § 54-601(1), which in relevant part reads:

[T]he owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (a) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs and (b) to any person … by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person ….

The question is whether this strict liability

encompasses the act of a herding dog nipping at the heels of a cow, causing the cow to move forward, collide with a ranch employee, and inflict "bodily hurt" [apparently quite serious injuries -EV] on the employee.

Yes, argued the employee:

He points out that to "injure" has a broad definition of "'to inflict bodily hurt on [someone or something],'" that standard principles of proximate causation apply in strict liability actions, and that an animal's normal response to an action is not a superseding cause in the chain of proximate causation.

No, says the court:

Given that other words in § 54-601(1)(b)— "worrying" and "chasing" "any person or persons or any sheep or other domestic animals belonging to such person …"—entail action directed toward the injured person or toward the injured animal owned by the damaged plaintiff, we hold that "injuring" must also be limited to bodily hurt caused by acts directed toward the person or animal hurt….

And here is the court's more detailed analysis:

We have long strictly construed § 54-601, and the Legislature has repeatedly acquiesced to our understanding of its intent. In particular, we have held that the meaning of each term in the list of acts by a dog which subject its owner to liability under § 54-601(1)(b)—currently, "killing, wounding, injuring, worrying, or chasing"—"is dependent on the other in the context that the Legislature chose to place them."

We have consistently explained that the relevant context was the Legislature's intent in enacting § 54-601 to derogate from the corresponding strict liability common-law action only by eliminating the need to prove that the owner had knowledge of the dog's dangerous propensities—and only as to the acts and persons described in the statute. Under the common-law strict liability action that was modified by § 54-601 for those to which § 54-601 applies, a plaintiff had to demonstrate both (1) that the dog was vicious or had dangerous propensities and (2) that the owner knew the dog to be vicious or dangerous.

The common-law basis for strict liability for the acts of one's dog depends upon establishing that the dog has dangerous propensities or tendencies, because at common law, dogs are presumed harmless. The common law recognizes the right of the owner to keep a vicious dog for the necessary protection of life and property, but that one exercising the right to keep an inherently dangerous dog must do so at his or her own risk and be held strictly liable for any damage resulting to another. The vicious or dangerous nature of the dog is essential to such a claim. Statutes effecting a change in the common law should be strictly construed.

Thus, we have held that the terms in the list of actions described in § 54-601(1)(b) must be "read together" in light of the context of the statute to provide for strict liability without proof of the owner's knowledge of the dog's "'dangerous propensities.'" It is improper to read the words as "detached and separated." Instead, "the meaning of each is dependent on the other."

And we have noted that many of the words of this statutory list inherently entail violence or an intent to harm. Thus, a "'wound'" is "'[a]n injury of a person or animal in which the skin or other membrane is broken, as by violence or surgery.'" To "'worry'" is "'to treat roughly as with continual biting' or 'to bite or tear with the teeth.'" To "'chase'" under the statute has been defined variously as "'to follow quickly or persistently in order to catch or harm,'" "'to make run away; drive,'" or "'to go in pursuit.'" In other words, the element that the dog be vicious or have dangerous propensities is implicitly part of the statute through these terms, read jointly….

We have also explained in relation to the meaning of the language of § 54-601(1)(b) that "[t]he purpose of the original statute was to protect domestic animals, which are ordinary prey of dogs." In fact, it was not until 1961 that the language of this "nonbiting" subsection of the statute was amended to apply to a "person or persons" "kill[ed], wound[ed], worr[ied], or chas[ed]" by the dog. Before that time, the provision here at issue encompassed only actions directed toward domestic animals owned by the plaintiff and allowed recovery only for damages caused by harm to such domestic animals. Before 1961, bodily hurt sustained directly by a person fell under § 54-601 only if such person had been bitten as described in subsection (1)(a) of the statute.

When the Legislature added "any person or persons" as an object of the dog's acts described by § 54-601(1)(b), the Legislature clearly meant to expand compensability under the statute to harm to a person caused by acts other than biting, acts which manifested the dangerous propensities that are the historical foundation for the common-law strict liability claim. Thus, after the amendment, people could bring strict liability claims under § 54-601(1)(b) for injuries they sustained during falls precipitated by dogs "worrying, or chasing" them; whereas before, they could not.

That language, however, has never been understood as encompassing bodily hurt to a person by way of a dog worrying or chasing "any sheep or other domestic animals" that, in turn, collided with the person. Such behavior toward the dog's "ordinary prey" has historically been compensable under § 54-601 only if the owner of the "prey" sustained indirect damages by virtue of the harm to the animal. And, as stated, all the words of § 54-601(1)(b) must be read together in the context that the Legislature chose to place them.

To understand the statute more broadly, as Smith suggests, would vastly expand the scope of strict liability for dog owners. In fact, Smith's proposed interpretation of the statute would effectively abrogate the common-law negligence action that has traditionally coexisted with § 54-601 and with the common-law strict liability action. A broad reading of the statute limited only by proximate causation and without any additional requirement that the dog's behavior somehow manifest dangerous propensities would eliminate any reason for nontrespassing persons suffering bodily hurt to proceed in negligence, where they would have the additional burden to prove that the owner of the nonvicious dog should have reasonably anticipated the occurrence.

To accept Smith's suggested interpretation of the statute would make dog owners strictly liable for actions directed toward "ordinary prey" whenever the prey's inadvertent physical harm to a bystander was part of that animal's normal response to the dog. It would make cattle ranch owners susceptible to strict liability whenever a herding dog's normal behavior directed toward a cow leads the cow to collide with and injure a ranch employee. Based on the history of the statute and the Legislature's prior acquiescence to our understanding of the statute's limited scope in light of such history, we cannot conclude that this was the Legislature's intent. We have never held that a dog's actions directed toward another animal can lead to strict liability under § 54-601 for bodily hurt to a person by way of such animal instrumentality.

Perhaps Gunner's alleged act of nipping at a cow's heels is not properly characterized as "playful and mischievous," but it was nothing more than the normal behavior of a herding dog, which has never been considered vicious. In this case, unlike the cases where we have concluded that playful and mischievous acts do not fall under § 54-601(1)(b), the dog's acts were not even directed toward the entity suffering the bodily hurt. Gunner had no direct contact with Smith, and there is no evidence that Gunner's actions were in any way directed toward Smith….

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  1. “Perhaps Gunner’s alleged act of nipping at a cow’s heels is not properly characterized as “playful and mischievous,” but it was nothing more than the normal behavior of a herding dog, which has never been considered vicious.”

    FWIW, we used to have a Blue Heeler mix. As the name implies, she would worry[1] at our heels to herd us, i.e. if we took a family after dinner stroll, she would work at keeping the group closed up. We laughed about it, but it worked – moving closer together was the path of least resistance.

    [1]I use ‘worry’ instead of ‘nip’ because whatever she was doing to your heel (I don’t really now, I don’t usually watch my heels when walking) didn’t hurt; she just pestered you into acquiescence. And it wasn’t playful; it was business to her. Frisbees on the other hand…

  2. Why is this different from any other work related injury?

    1. IANAL, much less an employee liability specialist, but the opinion mentions, inter alia:

      “Smith’s girlfriend at the time of the accident testified … that Smith “smoked another bowl of meth” on his lunch break.”

      (Smith is the injured employee)

      Perhaps an employee’s intoxication is a defense under normal employee law, but not under the strict liability dog bite law.

      1. LMAO. Of course.

  3. My son was a K-9 patrol officer for five years. The possibility of the dog biting somebody at a crime scene is actually pretty high. Often it is other police officers. Dogs get excited. Canine officers all have scars to show for it, usually on their forearms.

    The burn-out rate for canine officers is pretty high because (1) they get called to a lot more intense scenes per shift than the average patrol officer, (2) they end up running miles and miles behind their dog in full police gear (with vest and all the weapons and other stuff totals up around 26 lbs) and (3) the paperwork for a K-9 officer can easily become overwhelming. If the dog even nips someone it compels at least nine separate forms and reports per victim. My son’s dog got loose in a bar room brawl once and bit 22 people! Lastly, (4) humans get emotionally attached to dogs but a dog’s career can be really short, especially if injured. Many departments do not allow the animal to be adopted because they are scared to death of downstream liability repercussions. The animal must be destroyed.

    1. “The animal must be destroyed.”

      This is such a euphemism. Better to say “the dog must be killed by the very police department that it faithfully served.”

      As this illustrates, in general, it seems quite a few police departments do not respect canine life. This is also illustrated by their tendency to kill dogs when they execute search warrants out of “convenience” and an excess of caution rather than any necessity. As a society, we ought to be better friends to man’s “best friend.” (The scare quotes are because I am more of a cat person; but I love dogs as well.)

    2. This seems different from military working dogs where they are adopted out.

  4. Why does (b) apply at all? It says that the cow in question needs to “belong to” the injured person. Here I would assume the cow belonged to the employer or ranch owner (assuming they are not one and the same), but not the injured ranch hand.

    Second, why isn’t this a workers comp claim. Are ranches excluded from w/c in Nebraska?

    1. I also wondered about the W/C issue.

    2. Don’t know about Nebraska specifically but yes it is often true that agricultural activities are exempted from workers compensation law.

      1. Also, intoxication is a often a defense in worker’s comp claims, and from the opinion the evidence showed that he was on drugs at the time of the incident.

  5. Lizzie, our Pembroke Welsh Corgi, certainly takes her grandchildren-herding duties seriously! (yes, Corgi’s are herders, formally classified in the Herding Group at dog shows)

  6. So was Mrs. O’Leary liable for the actions of her cow?

  7. This is ridiculously unneccessary

    The cow injuring a person, the cow’s owner should be liable

  8. This interpretation does not make much sense. If one of these herding dogs causes damage to an animal, then the rancher is liable to the owner of that animal. Not matter how “normal” such nipping behavior. Well, if that is the the rule, then I think that any other foreseeable damage caused by an animal fleeing such a dog should also be compensated. So, for example, if such an animal being nipped at jumped a fence it would not normally jump and ran into traffic, then the dog owner ought to be liable to the occupant of the car if it would be liable to the owner of the animal jumping the fence. It makes no sense to say, in the very same accident, that the dog owner is liable to the owner of the animal, but that gets hit by the car, but not to the human occupants of the car.

    “Statutes effecting a change in the common law should be strictly construed.”

    Translation: We are going to interpret that statute in a way that is unfaithful to the text, because we don’t like the result of following the text. The court is worried about expanding the liability of ranchers more than it is in interpreting the law correctly and in a neutral manner.

    1. (cont.)

      Note that all of the justices on the Nebraska Supreme Court, except one, were appointed by Republicans. We can probably safely assume that they consider themselves conservatives. They probably would admire someone like Justice Scalia.

      Notice the outcome driven results here.

      “It would make cattle ranch owners susceptible to strict liability whenever a herding dog’s normal behavior directed toward a cow leads the cow to collide with and injure a ranch employee.”

      Can’t have ranchers pay for the costs of their operations, right? What could be a worse result? Imagine ranchers having to buy liability insurance that covered such accidents. Such horrible consequences!

      “Based on the history of the statute and the Legislature’s prior acquiescence.”

      Judicial activism that is not reversed by the legislature (which will have a substantial number who agree politically with the result, whether it is the best interpretation of the text or not) is just fine.

      When so-called conservatives say they believe in the rule of law, we ought to look at what they do, rather than what they say. This is a willful decision designed to achieve a preferred policy outcome. No doubt about it.

      1. Can’t have ranchers pay for the costs of their operations, right? What could be a worse result? Imagine ranchers having to buy liability insurance that covered such accidents. Such horrible consequences!

        “They can just insure” is not a rebuttal to an argument against overexpanding liability. (A ranch hand could just buy insurance, too.) Unlike the government, insurance companies are not magical fairy money printing machines.

        Judicial activism that is not reversed by the legislature (which will have a substantial number who agree politically with the result, whether it is the best interpretation of the text or not) is just fine.

        Setting aside your dubious understanding of what judicial activism is, yes, this is actually how statutory interpretation is supposed to work. If there’s an ambiguous statute and the courts interpret it a certain way, and the legislature sufficiently acquiesces, then the principle of stare decisis says that courts should not pick a different interpretation down the road, but should generally let the legislature change it if desired.

    2. Well, if that is the the rule, then I think that any other foreseeable damage caused by an animal fleeing such a dog should also be compensated.

      Sounds like a policy argument.

    3. How far are you going to let that chain of inferences go? Are you as grandparent responsible because you gave a child a ball which he then chased into the street and got hit by a car? Is the local ski resort responsible when they use a mortar to safely reduce an avalanche condition but your horse spooks at the sound and throws you?

      To your specific example, if a dog nips at a deer which flees into traffic, I am aware of zero cases concluding that the dog owner is responsible to the car owner. If it’s a fenced domestic animal such as a cow, the car owner would have a considerably stronger argument against the cow owner who, in hindsight, did not build a high or strong enough fence.

      I see no evidence that partisanship by judges has anything to do with this.

    4. “Translation: We are going to interpret that statute in a way that is unfaithful to the text, because we don’t like the result of following the text. The court is worried about expanding the liability of ranchers more than it is in interpreting the law correctly and in a neutral manner.”

      You aren’t a very good translator. Not very good at all. Perhaps you should demonstrate how the text of the law leads to the result you claim, because I certainly don’t see it.

      Plus, it’s not even clear that he ever proved that the dog actually bit the cow. He lost his negligence claims, but that could have been because he was intoxicated and not because the dog didn’t bite the cow.

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