There is a wonderful scene in the 1976 Peter Seller's film The Pink Panther Strikes Again in which he arrives at a Swiss hotel seeking a room. After a brief colloquy with the hotelier over obtaining a "rume," he turns from the front desk to see a long haired dachshund lying quietly in the doorway leading to his suite. He asks the innkeeper, "Does your dawg bite?" and is met with a firm "no" in response. Sellers then kneels down to pat the hound, whereupon it leaps up to viciously bite his hand. Perplexed, he turns back to the front desk to exclaim "I thought you said your dawg did not bite!" Nonplussed, the proprietor replies "That is not my dog." Wonderful comedy but, in the real world a potentially serious event that often leads to litigation.
Claims arising from injuries caused by animals, such as dogs, are usually premised on allegations of negligence and, occasionally, occupier's liability where the injury occurred on the property where the animal was kept. A third type of claim arises from the legal doctrine of scienter which founds liability on the knowledge of the animal's poor behaviour or propensity to be aggressive. Unlike a negligence claim, scienter imposes absolute liability on an owner if its pre-conditions are established: there is no need to prove negligence. For scienter to apply, it must be proven that at the time of the attack:
- The defendant was the dog's owner;
- The dog had previously manifested a propensity or tendency to cause the type of harm that happened; and
- The dog's owner knew of that propensity.
As a general rule, the law divides animals into two categories: wild and domesticated. In dog bite (and other animal injury) cases, the question is whether the animal was dangerous or had a known or suspected propensity to cause injury. As a 1997 B.C. appellate case stated:
Dangerous animals are divided into two classes: (i) animals ferae naturae, like bears and lions, which by reason of their species are normally dangerous, although individuals may be more or less tame; and (ii) animals mansuetae naturae, like cows and dogs, which, as a kind are ordinarily harmless, though individuals may harbour a vicious or dangerous disposition. Animals of the first category are never regarded as safe, and liability attaches for the harm they may do without proof that the particular animal is savage.... But as regards the second class, it must be shown that the particular animal was dangerous and that the defendant knew, or had reason to know, it.
The outcome of every case is very fact specific. In one recent case, a woman visiting a hotel was bitten in the face by a dog owned by a former hotel employee. She sued both the dog owner and the hotel. The hotel successfully defeated the claim because "there [was] no evidence the [hotel] knew or should have known that the dog would create a risk to any third party, including the plaintiff." In another decision, a scrap yard owner was held liable in both scienter and negligence when his dog left the yard and attacked a passerby. The court found that "the defendant kept the Bouvier dog in the scrapyard property seven days a week, 24 hours a day, unsupervised. The scrapyard where the dog was kept was not fenced. Clearly, at the time of the attack ..., the dog was not secured by a chain."
Much the same considerations apply where the claim is premised on a breach of the Occupiers Liability Act. The property owner must know the animal on their land is potentially dangerous, not just that it is there. An occupier cannot be liable for a sudden act of a fierce and violent nature which is altogether contrary to the usual habits of the dog in question either under the common law or the Occupiers Liability Act. Such was the case in Ali v Samra, (2019 BCSC 2005) where the tenant's dog escaped the Samra's property to bite a passing neighbour. The claim against the Samra's was dismissed under the Occupiers Liability Act because "even if the Samra's knew that there was a dog present in the building on the Property, they did not know it was dangerous."
Owning an animal with a propensity for violence can be a heart breaking strain on its owners. In order to protect other members of the public, however, the law imposes stringent obligations on owners to keep such animals under close supervision to avoid injury. In Peter Seller's case, it's hard to say if the hotelier was liable for injury caused by a dog he did not own but likely knew was dangerous. We will never know but will nonetheless enjoy the scene.
Originally published 9 June, 2020
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