Elements of Dog Bite Law

    In the most recent Missouri State Legislative session it seems the lawmakers have decided to rein in dog owners. The State’s new laws that went into effect August 28, 2009 contained a new statute (RSMo. 273.036) re-defining liability for dog owners. The common phase “The First Bite’s Free” seems to no longer apply.
History
    In order to really understand the importance of this new change, it is necessary to look at the past and how dog bite law used to operate in Missouri. To understand the earlier attitudes regarding this subject it is important to look at the case of Wilson v. Simmons, 2003 MO 188 (MOCA, 2003) which read in part:
    The rationale for requiring somewhat stringent proof of the owner's actual or constructive knowledge of a domestic animal's vicious propensity is primarily one of public policy. If actual or constructive knowledge is shown, the rule is one of strict liability, not requiring fault by the owner. In the case of dogs, they have earned and merited acceptance as man's best friend. The dog's social utility justifies permitting the owner a degree of freedom from potential liability.
    The Court is essentially saying if a person knows the dog is “vicious” the owner of the animal is liable for injuries caused by the dog. So this draws out to mean if you take your average dog that has not bitten anyone, an owner has no knowledge of the dog’s vicious nature, therefore the owner is not yet liable for that first bite. This is where “First Bite Free” comes from, the idea that until your dog hurts someone, they are not considered vicious, so the bite that puts a dog owner on notice that their animal is vicious is not the responsibility of the dog owner and therefore “Free”.

The Law
    Before RSMo 273.036 went into effect there were no statutes defining liability standards for dog owners. The Courts developed the area in the Common Law. The heart of the Common Law as it related to dog bites can be summarized as such:
This of course is an over simplification, but it is clear that except in the circumstances of a dog injuring a trespasser the dog’s vicious nature had to be demonstrated requiring a first “Free” bite.

A dog owner who has knowledge of his dog’s vicious nature (i.e. has injured someone before) is liable to anyone his dog injures, except a trespasser.
A dog owner who has knowledge of his dog’s vicious nature has to notify a guest of the dog’s nature.
For property owners who have people on their land for the property owner’s benefit, and that have knowledge of an animal’s vicious nature, the landowner has a duty to protect those people from the danger.

    Now the State’s lawmakers have stepped in they appear to have dropped the concept of the “Free” bite and made it clear that if a dog hurts someone that dog’s owner is responsible, even if it was the dog’s first time. In part RSMo. 273.036 reads:
    273.036. 1. The owner or possessor of any dog that bites, without provocation, any person while such person is on public property, or lawfully on private property, including the property of the owner or possessor of the dog, is strictly liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owner's or possessor's knowledge of such viciousness.
    The new statute makes clear that the concept of the first bite being “Free” is a thing of the past. While the law is new, and to this writer’s knowledge untested, it would seem that there is little room for the Courts to interpret this as meaning anything other than what was once free, could turn out to be costly.