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Pennsylvania - General Liability
Pennsylvania Common Pleas Court Takes The Bite Out Of A Plaintiff's Dog Law Claim

In dog bite cases, plaintiffs consistently argue that a dog owner is negligent per se for injuries resulting from a dog bite. The basis of a plaintiff's negligence per se claim generally rests with Miller v. Hurst, 302 Pa. Super. 235, 448 A.2d 614 (1982). In Miller, the Pennsylvania Supreme Court held that a violation of the Dog Law, 3 P.S. § 459-305 (former P.S. § 460-702), which addresses a dog owner's duty to confine his dog, could constitute negligence per se. In recent years, plaintiffs have also attempted to claim that a dog owner may be negligent per se for a violation of the summary criminal offense of harboring a dangerous dog under Section 459-502-A of the Dog Law. However, in Kormos v. Urban, 2005 WL 3970805 (Pa. Com Pl. Ct., Sept. 15, 2005), a recent Allegheny County Common Pleas Court decision, the court held that a violation of Section 459-502-A cannot constitute negligence per se.

In Kormos, the plaintiff sued the defendants to recover damages for injuries suffered when the defendants' German Shepard bit her. The plaintiff asserted that, although the dog had never before bitten anyone, the defendants were nonetheless negligent per se because they violated the summary criminal offense of harboring a dangerous dog under Section 459-502-A of the Dog Law, which reads as follows:

The owner or keeper of the dog shall be guilty of the summary offense of harboring a dangerous dog if the district justice finds beyond a reasonable doubt that the following elements of the offense have been proven:

(1) The dog has done one or more of the following:

(i) Inflicted severe injury on a human being without provocation on public or private property.

(iii) Attacked a human being without provocation.

(2) The dog has either or both of the following:

(i) A history of attacking human beings and/or domestic animals without provocation.

(ii) A propensity to attack human beings and/or domestic animals without provocation. A propensity to attack may be proven by a single incident of the conduct described in paragraph (1)(i), (ii), iii) or (iv). (Emphasis added).

(3) The defendant is the owner or keeper of the dog.

The plaintiff argued that she had been attacked without provocation and that she had proved that the dog had a propensity to attack based on the single dog bite incident giving rise to her law suit. The case proceeded to a jury trial. At the close of the plaintiff's case, the defendants moved for a compulsory nonsuit. The trial court granted the motion, holding that the plaintiff could not recover any money damages because she had failed to make out a negligence case against the defendants. The trial court denied the plaintiff's subsequent post trial motions. The plaintiff appealed.

On appeal, the Court of Common Pleas of Allegheny County soundly rejected the plaintiff's negligence per se theory and concluded that Section 459-502-A was not meant to be the basis of a civil lawsuit. The court pointed out that nothing in the legislative history of the statute revealed that the Legislature intended for the criminal statute to apply to a civil dog bite case. The court explained that if it was the intent of the Legislature in Section 459-502-A to hold dog owners strictly liable for unprovoked attacks by animals not known to have a dangerous propensity, the Legislature would have stated so. Additionally, the court noted that there was no precedent from a higher Pennsylvania court supporting the plaintiff's negligence per se theory and that none of the civil cases cited by the plaintiff stood for the proposition that a dog owner could be held civilly liable for the first unprovoked attack when the dog had shown no dangerous propensity and the dog's owner had not acted negligently.

Further, citing to Deardorff v. Burger, 414 Pa. Super. 45, 606 A.2d 489, 492 (1992), the court determined that, even if evidence of one unprovoked bite could constitute evidence of a vicious propensity for biting, the plaintiff still needed to prove, under Pennsylvania law, that the owner knew or should have known of the dog's vicious propensity for biting and that, based on that knowledge, the owner acted unreasonably. Moreover, the court noted that the Commonwealth does not impose absolute liability on the owner of a domestic animal for an unprovoked attack.

From a defense standpoint, this case is significant because Section 459-502-A allows a "propensity to attack" to be proven by a single dog bite. The Kormos decision clarified that in order for a dog owner to be civilly liable for an unprovoked dog bite, the injured party must establish that the dog owner either knew, or should have known, of the dog's dangerous propensity to bite. The court determined that the dog bite giving rise to the lawsuit, standing alone, is not enough to show a vicious propensity.

*Carol is an associate in our Philadelphia, PA office. She can be reached at (215) 575-2643 or cavanderwoude@mdwcg.com.