The Volokh Conspiracy
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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?
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….
