New Dog Bite Case Law in Tennessee
Dog bite cases can be particularly tricky. A recent Tennessee Court of Appeals ruling in the case Moore v. Gaut, No. E2015-00340-COA-R3-CV provides a good overview of the law on the subject and points to the simmering debate of whether specific breeds are inherently dangerous…
The plaintiff was at the Defendant’s home to service a satellite dish for his employer. The defendant was not at home at the time of the incident, but Defendant’s father was present. The parties disputed whether or not Defendant’s father had a conversation with Plaintiff in which the dog, a Great Dane, was “introduced” to the Plaintiff. When Plaintiff parked his van near the backyard fence and went to get his tools and supplies from the van, Defendant’s dog, which was contained in the fenced-in backyard, bit Plaintiff on his face while Plaintiff through the fence.
Plaintiff filed suit, and Defendant answered, denying liability on the ground that he neither knew nor should have known of the dog’s dangerous propensities because he had never bitten anyone before. (This is what is often referred to as the “one-bite rule”–as in dogs get a “free” bite because there was no reason to suspect they could pose a danger.)
The trial court granted summary judgment to Defendant, finding that the undisputed facts demonstrated no previous history of the dog biting, attacking, or acting aggressively. The trial court rejected Plaintiff’s argument that the Great Dane’s size alone would create a genuine issue of material fact, which it noted would essentially create a “big dog exception” to the notice requirement for liability of dog owners.
The Court of Appeals began with an overview of the history of the law applicable to dog bite cases in Tennessee. The Court noted that common law principles regarding dog bite cases were first outlined in a 1914 Tennessee Supreme Court, and that the common law principles had not changed substantially since that opinion. Significant to these common law principles is the notice requirement—in the absence of negligence, an owner can only be held liable for injuries where the owner had knowledge or notice of the dog’s dangerous propensities. A later Supreme Court opinion noted that a dog’s playfulness or mischievousness could be considered a dangerous propensity in addition to a vicious temperament.
The Court then looked to Tennessee Code Annotated § 44-8-413, enacted in 2007, which sets forth the standards for civil liability pertaining to injuries caused by dogs. For damages to a person while the person is on a residential, farm, or other noncommercial property owned by the dog owner, the injured party is required to show that the dog’s owner knew or should have known of the dog’s dangerous propensities. The Court noted that there were currently no Tennessee appellate decisions construing this statute, but held that for dogs causing injury on its owner’s property, the statute “clearly retains and codifies the common law requirement” of notice of the dog’s dangerous propensities.
The Court also found significant that the dog did not get outside the fence and that it was Plaintiff who approached the dog. The Court agreed with the trial court that Plaintiff was essentially asking the Court to create a “big dog exception” to the notice requirement. Plaintiff argued that it was common knowledge Great Danes were an extraordinarily large breed, and contended that the dog’s size alone should place the Defendant on notice of its dangerous propensity. The Court rejected this argument, stating that it declined “to craft an exception to the long and well established rules in dog bites cases, based solely on a dog’s size or breed.” The trial court’s judgment was affirmed.
The Court of Appeals’ decision declining to establish an exception for a dog’s size or breed could have interesting implications for breeds that are often stereotyped as dangerous (such as pit bulls), at least for cases that fall under subsection (c)(1) of Tenn. Code Ann. § 44-8-413, which requires notice or knowledge of the dog’s dangerous propensities in order to establish liability. Tenn. Code Ann. § 44-8-413(b)(2), which applies to dogs “running at large” as the Court characterized it, does not require such a showing.