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Dogs & Their Owners

Q: How do you deal with dogs? What are the legal aspects?
A: Hmmmm. Here's an ugly mix dogs and lawyers. Both chase ambulances, don't they?

While I am indeed a lawyer, I'm no expert on "dog law" and this is not a legal advertisement nor is it the giving of legal advice. Nevertheless, here's my take on the following three questions:

Is it legal for owners to keep their dogs off leash on an unfenced property?
Is it "legal"? Unless there is a "leash law" applicable to that unfenced property, I'd say "Yes it is." Most leash laws I know of apply only to property outside of the owner's personal property. Some only apply to limited areas, like a local public park, a cemetery, the downtown district, etc.

Outside of cities and some towns there are very few leash laws. And where leash laws do exist (city or country) they are rarely enforced. Most police officers don't have the time to worry about an unleashed dog unless someone complains specifically or they actually see it doing something that catches their attention. Or candidly, unless they wish to use the obvious violation of the leash law to approach an individual and confirm their suspicions as to whether some other covert illegal act is occurring.

What a leash law does do is give you the right to call and complain based on a violation of a legitimate community standard. It should also give you is a stronger argument in a civil lawsuit by establishing a minimum code of conduct or duty on the part of the dog owner that they breached if they let their dog run free.

What is the liability of the owner if his or her dog is involved in an unprovoked attack?
Negligence is defined as the "breach of a duty." If an ordinance or local regulation creates a duty to keep your dog under control or on a leash and you don't, you breached that duty. The government would simply fine you. However, because you breached a duty, if that breach caused damages, you could be sued for negligence with the leash law providing the basis for your duty.

I also understand that the owner of any animal, including dogs, has a general "common law duty" to keep that animal under control and not allow it to become a nuisance or a threat, etc. A breach of the common law duty could also provide the basis for a claim of negligence.

Complicating the answer is the matter of "notice." Now, assuming there is no leash law and we're only relying on the "common law," and dear ole Lassie just lays around in the yard, never chases a bike, saves kids from burning automobiles and donates money to the local lost dogs fund then when Lassie suddenly wrestles a cyclist to the ground, the owner might be able to legitimately say "I had no idea!" and not be found liable. Of course, the owner of a pit bull or some other breed with a known aggressive personality might have a harder time making this argument.

Now on the other hand, if Bubba sits out front of his tar paper shack drinking his luke warm Budweiser and watching his mutt "Beauregard" chase cyclists, foreign cars and journalists, and his mutt takes down a cyclist I believe he will have a much harder time saying "Ah had no idee (hic)."

The reason "notice" is important in the common law is that if you are on notice that your dog might chase a cyclist, then you have a common law duty to stop your dog from creating such a nuisance. The more you are on notice of, the higher your duty is to stop the offending behavior, and the more likely you will be found negligent if you don't take the steps necessary to abate that nuisance.

This particular theory is the basis for my comment where an owner is present and a dog is "bothering" me (chasing me, trying to bite me, running in front of me, whatever) I tell the owner their dog is a nuisance by doing whatever it is doing and that the owner is now on notice and if I ever hear that their dog has harmed a cyclist I will be the first to testify against them.

Most common response: "Oh, it won't bite you." My retort It doesn't have to bite me. It can run under my wheel or knock me off my bike or cause me to instinctively swerve into traffic. It can run into a pack of cyclists and cause an accident between cyclists. It could cause a car to swerve and strike a cyclist. I remind them that once that dog leaves their property and reaches the right of way or the roadway I have a right to be there, the law protects me not the dog or the owner, and the law gives me the right to sue the owner for any damage.

Here's a suggestion: if you know of a particularly vicious dog that chases cyclists write a letter about the dog to the County Judge, the Sheriff, the Animal Control people, and anyone else in local authority. Send the owner a copy. (No name? Address it to “Owner of Dog at XXX North Umbrage Street.”) Keep the letter factual and to the point. Don't embellish. “Please take notice that the dog living at XXX North Umbrage Street chases cyclists, barking and snapping at their heels. It is a danger to cyclists and should be restrained.” The letter might not get immediate attention, but it might help someone else who was injured by that dog establish that the owner was on notice of the dog's actions.

One final note: if you know that there is a vicious dog at XXX North Umbrage Street and you could easily ride one block over and avoid the dog you probably should. Under the common law, putting yourself in harm's way when you had an opportunity to avoid the harm opens a whole different can of worms, partly because "notice" can work both ways.

What are the legal implications if I end up injuring/killing the animal while trying to save myself?
I believe you are always justified in applying equal force to reject a threat. If a dust mop of a dog comes yapping out to the side of the road and you swerve over to the same shoulder and wipe it out with a tire iron you will probably have a problem. If you accidentally run over the dog while trying to stay out of its way, you probably do not have a problem.

Basically, my belief (not entirely spoken as a lawyer) is that if you believe you face imminent serious bodily harm from a biting, grasping dog I would not worry about the possible subsequent implications save yourself first. I'd rather be explaining why I had to hurt the dog as opposed to listening to the owner explain why the dog hurt me.

Michael Lowe (edited and updated from a June 2000 posting to the KyCycList mailing list)

Q: What to do if you're bitten by a dog?
A: First, try to get away from the dog as quickly as possible.

Second, make sure you get the address and a good description of where the dog lives and a good description of the dog. This is more important than contacting the owners of the dog. Officials suggest you really not contact the owner directly.

Third, contact the Health Department as soon as you can with all the details of the bite, the description of the dog, the location of the incident and the dog's address. No matter where in the state the incident occurs, you should contact the Jefferson County Health Department, Animal Bites Department -- 502-574-6640 [ask for Wilma]. The Jefferson Co. Health Department will contact the local county health official, who will go visit the dog's owner and ascertain whether the dog has a current rabies vaccination. If not, then the health department official will take the dog into custody and quarantine it for observation for a period of 10 days. If the dog does have current vaccinations, then the owner will likely be allowed to keep the dog, as long as they chain it or confine it for the required quarantine period. If the dog is fine after the 10-day period, then the health official ends the quarantine and releases the dog back to the owners.

Fourth, if you would rather take direct action in the county where the bite occurred and are not sure whom to contact, start with the local county sheriff.

Fifth, I was surprised to learn that if the dog passes the quarantine, the county officials just let the dog go back ... free to bite again. If you feel the dog will continue to be a menace to you and/or other riders, you can and should contact the local County Attorney's office and swear out a "Vicious Animal Warrant" against the owners of the dog. You can do this while the dog is still in quarantine. This is a misdemeanor criminal charge. The dog's owners have to appear in court and a judge will determine, based on the circumstances of the attack, what, if any, restrictions need be placed on the owners to avoid future attacks if they want to keep the dog. This is very important if you want to establish a record of your bite in the event the dog ever bites again. If that should occur, then the county health department will very likely put the animal down.

Mike Pitt (adapted from a September 2001 posting to the KyCycList mailing list)

Q: What does the law really say about dogs and their owners? Can we have the letter of the law?
A: Chapter 258 of the Kentucky Revised Statutes deals with dogs, and the owners' responsibilities and liabilities. Here are the relevant sections:

Section 235: Proceeding by person attacked by dog
Section 265: Confinement and control of dogs
Section 275: Liability for property loss or injury by dog -- Procedures for enforcing claims for damages
Section 990: Penalties

Johnny Bertrand (adapted from a May 2002 posting to the KyCycList mailing list)

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last updated: 30 April 2006