Large Dogs & The Law

From the tiniest of lapdogs to the most towering shepherd or work animal, dogs have been among man’s closest associates since the beginning of recorded time. Nowhere among the creatures of the earth are there two other species capable of developing the closeness which exists between humans and canines; a closeness which leads them to share nests and food, to trust each other completely, and even to help in caring for each other’s young.

Many explanations have been offered for this unusual inter-species relationship, but all fall short of complete understanding. Thorstein Veblen, a 19th century economist who attributed most of man’s foibles to the need for conspicuous consumption, wrote that the dog “commends himself to our favour by affording play to our propensity for mastery.”

British poet Lord Byron saw the relationship in more romantic terms; as one based purely on love and companionship. The dog is, he wrote, “In life the firmest friend, The first welcome, foremost to defend.”

In reality, however, the reasons why people keep dogs are as varied as the nature of man and as diverse as the number of canine breeds and crossbreeds. Some dogs herd sheep. Some dogs flush game. Some are just good pals. And some are especially good at keeping the wolves away from the door.

The Desire For Big Dogs In Our Homes

It is probably this latter talent which accounts, to a great extent, for the current popularity of German Shepherds and other large dogs. For America is the trip of a security hysteria – fostered perhaps by rising crime statistics, terrorism scares, and nurtured along by millions of well-spent advertising dollars.

Always prepared to make the best of a bad situation, merchandising experts – quick to jump on the hysteria bandwagon – are spending fortunes reminding anxious Americans of how vulnerable they are. In the face of such rampant paranoia, it was only natural that America should discover the large dog.

Not, mind you, that the large dog had ever really fallen out of favor. After all, there was a TV series about a collie, and another about a ghostly St. Bernard; and Shepherds have been among the most popular dogs in American for years. But in the cities, where apartment life meant close quarters and required the efficient use of space, the toy breeds were considered more practical. Lately, however, all that has begun to change.

Fear of falling victim to the thieves and thugs who prowl our cities has led huge numbers of people to purchase large dogs as a self-protective measure. It is no longer uncommon to find a 90 pound German Shepherd sharing a three room apartment with a family of five, or to see a wispy lady of 73 walking down a city street in the company of a thick-muscled Labrador Retriever.

Big Dogs Perhaps, But Untrained Nevertheless

A few organizations which specialize in security dogs are supplying industry with armies of expertly trained canine protectors. But for the most part, the other city watchdogs serve mostly as psychological deterrents. Their instincts are unrefined and their behavior untrained. They bark at strangers but can’t really be counted upon to prevent them from making entry. In essence, they are canine scarecrows, their owners relying on their size and appearance to frighten off would-be thieves.

Undoubtedly, the ploy is an effective one, for it is being utilized by a steadily increasing number of people. And it is becoming obvious that this is having a noticeable effect on city life. Indeed, one can hardly go anywhere in the city without encountering some evidence of their presence.

Their barking can be heard coming from behind locked apartment doors; they can be seen romping in vacant lots and parking areas; and, in some neighborhoods, huge mounds of their droppings can make walking from sidewalk to automobile a veritable obstacle course. And, more and more often, they are becoming the subject of lawsuits in course throughout the U.S.

Trouble With The Law

In considering such cases, a New York City judge was recently prompted to comment on a sudden popularity of the larger breeds. While noting that association with them gives pleasure and satisfaction to many people, he argued that their presence “in large numbers in apartment houses, streets, playgrounds, and parks is in varying degrees a source of discomfort, anxiety, and sometimes terror to many others.”

He suggested that the working out of new rules of behavior was a “pressing, long-overdue, societal need.”

The matter in dispute involved a claim for damages by a postman who was bitten by a Boxer dog belonging to a family on his mail route. Although the animal has never bitten or displayed hostile tendencies before, the court held its owner responsible for the plaintiff’s injuries, ruling that the owners of large dogs should be held to a greater standard of responsibility than the owners of small dogs.

Different Laws For Different Size Dogs?

The concept of applying different standards of care to different types of activity is not a new one under the law. For example, dynamite factories require more careful maintenance than pillow factories. And for this reason, a negligent act in one might not be negligent at all in the other.

The New York decision simply applies the same type of double standard to differing canine breeds. It is indicative of a fast-developing trend in “the law of dogs” with which every large dog owner should be acquainted. If the trend is carried to its logical conclusion, it could increase a dog owner’s legal responsibility and even raise the cost of his insurance.

Historically, the Common Law divided all animals into two categories: wild and domestic. Wild animals, like lions or falcons, were those that had to be caged or tamed in order for man to live with them. Domestic animals, like cattle or chickens, needed no training or restraint.

One who chose to keep a wild animal was responsible for any damages which it might do. This was true regardless of how carefully he kept it: no matter how stout its chain, no matter how strong its cage. In support of this principle, courts reasoned that since the animal’s keeper had voluntarily engaged in an “inherently dangerous” activity, he should be required to compensate his neighbors for the perils to which that activity subjected them.

One who kept a domestic animal, however, could not be said to be exposing the people around him to any particular danger. And so he was held liable only for those damages which resulted from his actual negligence or carelessness. A farmer who failed to repair his defective fence, for example, might be required to pay for damages done by his escaping cattle. If, on the other hand, the fence was in good condition, but the cattle managed to escape somehow in spite of it, he would not be responsible, since he had done nothing wrong.

Dogs & The Common Law

Even under the Common Law, man’s best friend did not always fit neatly into one or the other of the two categories. Although – unlike cattle, fowl, and other domestic animals – it was capable of great ferocity, the dog had lived so long in proximity to man that no training or restraint was required for peaceful coexistence.

Although it had teeth for killing and tearing flesh, it obviously preferred licking man’s hand to biting it. And so, although dogs were not generally classified as domestic animals, the law treated them as if they were, holding their owners to the same standards of responsibility as the owners of cattle or sheep.

In most areas of the United States, the law continues to follow these traditional patterns. There are, however, a few jurisdictions which treat all dog owners as the keepers of wild animals. In these states, a principle known as “strict” or “absolute” liability makes the owner of a dog an “insurer” of the public safety. He is held financially responsible for all his pet’s aggressions, no matter how carefully he tried to prevent them.

By and large, though, the majority of American jurisdictions have been continuing to apply common law principles relating to “domestic animals,” charging the dog owner with liability for his own misconduct only.

Thus, a plaintiff suing in such a jurisdiction is required to prove that the defendant dog-owner committed some act of negligence. And to do this, he must usually establish three separate elements: first, that the dog had an inclination to attack; second, that its owner knew or should have known of this “vicious propensity,” and, third, that in spite of his knowledge, he failed properly to restrain it.

Contrary to popular belief, it has never been the law that every dog is “entitled to one free bite,” since vicious propensity could be made evident through barking, snapping, growling, or other hostile conduct. But, in general, some proof of the propensity, and of the dog owner’s knowledge of it, are required in order for the plaintiff to win his lawsuit.

The New York position, however, if followed by the other states, could change all that. For, in effect, it means that large and small dogs are to be classified as two different species of creature – the larger animals wild and the smaller ones domestic. And there is ample reason to believe that many other jurisdictions will soon follow the state’s lead.

An Illinois court, for example, recently wrote that past conduct notwithstanding, “the owner of an animal is bound to take notice of the general propensities of the class to which it belongs.”

And a California court went so far to state that a dog’s dangerous character and its owner’s knowledge thereof could be inferred not only from the manner in which it is kept, but “from size and breed” as well.

Watchdogs & Guard dogs Are Subject To Stricter Penalties

So far, most of the cases which have taken this position have involved animals which were kept specifically as watchdogs or canine protectors. And in this context, the “double standard” concept is a more valid one. For, as one court put it, “The presumption that a dog will not bite does not apply to one trained to be vicious.”

The fact is that a dog which has been taught to attack can no longer be thought of as a “domesticated” animal. It is only a little like a loaded gun – not necessarily dangerous if left alone, but capable of causing great harm if mishandled or underestimated.

For this reason, many courts admit evidence of an animal’s training for the purpose of determining whether or not it has a proclivity to be vicious. Similarly, testimony regarding the manner in which a dog is kept is frequently allowed for the purpose of proving that its owner had knowledge of the alleged vicious propensity.

A California court once wrote that the dangerous character of a dog could be established by “evidence that the dog was kept (1) tied (and) (2) as a watchdog.” While in a later decision, another court of that state held that keeping a trained watchdog on a 15 foot chain without warning passers-by of its ferocious nature was “similar to maintaining a trap” to catch and injure the innocent as well as the guilty.

When deliberating a case, a judge is required to consider only those facts which the evidence has established. And this means that only opportunity for self-education comes with the testimony of expert witnesses, called into court for the purpose of giving opinions. But even here the judges are hampered; for it is the litigant and not the court who must call for expert testimony.

And since experts tend to be expensive, this is not always done. After all, if your veterinarian gets $50 to administer a hepatitis shot, think of how much he would charge for half a day in a courtroom testifying under oath and then facing attack by hostile cross-examiner. Therefore, because most “landmark cases” start out as disputes involving relatively small sums of money, an awful lot of them go to trial without any expert testimony of all.

This means that in any field other than his own – which is law, and nothing more – a judge is likely to be influenced by the same prejudices, half-truths, and misapprehensions as the rest of us, in some cases even more so.

If his neighbor happens to have a nasty German Shepherd, or a poorly trained “police dog”, and if in a dog-bite case no canine expert comes forward at the trial to dispel his ill-conceived notions about breed-linked propensities for viciousness, his misconception is probably going to become law. And if the judges who later read his decision are no more knowledgeable than their colleague, it is liable to remain law for decades and even centuries to come.

A Solution: Exposing The Careless Dog Owners

The current “security hysteria” has led many unscrupulous breeders and incompetent trainers to flood the market with ill-trained, ill-tempered, poorly bred, and hard-to-handle guard dogs. Too many of these animals have been placed in the hands of irresponsible people whose interest in large dogs is little more than faddish and his lack of experience should disqualify them from keeping even the most highly trained security animal.  And, regrettably, they are giving the large breeds a bad name – a name which is in danger of being perpetuated in the courts and elevated to the status of law.

Our only hope of preventing this lies in acting quickly to restore the formerly respectable public image of the maligned breeds. Careless breeders and trainers of “security” dogs should be exposed whenever possible, in hopes of preventing their tainted product from falling into the hands of the unsuspecting.

And those of us who own large dogs must be especially careful to see to it that our pets are under control and properly dispositioned at all times. Perhaps our good example will help a little to correct the harm which has already been done. And, equally important, perhaps it will prevent more of it from being done in the future.