29ASR2d123
[29ASR2d123]
PENINA GATES, a minor, by and through her
Guardian ad litem, UESA V. GATES, Plaintiff
v.
PHILLIP and
KATIE GEBAUER, Defendants
High Court of
Trial Division
CA No. 206-94
[1] Harboring an animal or exercising
apparent ownership is enough to create liability for an injury caused by that
animal.
[2] Where a dog bites a person, the owner
will be presumed to be at fault. This
presumption, however, can be overcome by an affirmative showing on the part of
the defendant that the harm was caused by the fault of the plaintiff, the fault
of a third person for whom the defendant is not responsible, or by an
independent cause.
[3] The owner of an animal is under a
legal obligation to keep the animal under his control and to guard innocent
parties from harm by the animal.[29ASR2d124]
Before
Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For
Plaintiff, Reginald E. Gates
For
Defendants, Katopau T Ainu`u
Opinion and Order:
I. INTRODUCTION
In December 1993, defendants Phillip and
Katie Gebauer lived in the
Gates was also then a resident of Vaitogi and was a
neighbor of the Gebauers. According to witnesses, the Gebauers had two dogs residing on their driveway and in
their yard. The Gebauers
admit to feeding these dogs, but deny "owning" them. The dogs would bark at people walking past
the Gebauer residence, and would often bolt from the
yard to chase people.
On
24, 1993, Penina was riding her bicycle
on the public road in front of the Gebauers‘
residence when the dogs chased her. One
bit her right leg. Penina
brought her mother to the house and pointed out the dog which had bitten
her. At that time, Katie Gebauer apparently told Penina
and her mother that she owned the dog.
Later, Katie Gebauer took the dog to the
veterinarian to have it checked for rabies or other communicable diseases. The dog continued living in the Gebauers‘ yard for at least nine months after the incident.
II. DISCUSSION
A.
Ownership of the Dog
[1] The Gebauers‘ defense rests primarily upon their claim that
they do not own the dog which bit Penina. Ownership of an animal, insofar as it creates
liability for an injury caused by that animal, is not defined by a set of
well-established criteria. However, a
number of courts have said that "harboring" an animal or exercising
"apparent ownership" is enough to create liability. See, e.g., Thompson
v. Sicard, 385 So. 2d 334, 335 (La. App.
1980) (stating that an animal is "owned" by a person with actual or
constructive control over the animal or who harbors it); Hornbein
v. Blanchard, 35 P. 187 (Colo. App. 1893) ("Keeping [the dog] upon the
premises . . . was sufficient to fix liability."); Shultz v. Griffith,
72 N.W. 445, 446 (Iowa 1897) (stating that the word "owner" in the
dog-bite statute includes anyone who has a dog in his possession and harbors it
on his premises).[29ASR2d125]
Under these standards, the Gebauers are the "owners" of the dog. They allowed it to live on their property,
apparently making no effort to remove it.
They continued to allow it to live there for over nine months after Penina was bit. They
also fed the dog, and on at least one occasion, Katie Gebauer
admitted that she was the dog’s owner.
She took the dog to the veterinarian after it had bitten Penina. We find that
the Gebauers were the dog’s owners, at least insofar
as fixing liability for its biting Penina.
B.
Standard of Care
[2] While some jurisdictions
apply strict liability to dog-bite cases, others rely on a negligence
theory. We believe the proper standard
is somewhere in between. Where a dog
bites a person, the owner will be presumed to be at fault. Cf. Holland v. Buckley, 305 So. 2d 113, 119 (
1974). This presumption, however,
can be overcome by an affirmative showing on the part of the defendant that the
harm was caused by the fault of the plaintiff, the fault of a third person for
whom the defendant is not responsible, or by an independent cause. Cf. id.
[3]
The presumption that the owner is at fault is particularly strong
where, as here, the dog bit a person on public property, the owner having taken
no steps to maintain control over the animal, instead allowing it to run free. The owner of an animal is under a legal
obligation to keep the animal under his control and to guard innocent parties
from harm by the animal.
to recover from the animal’s owner.
Thus, the Gebauers
are liable to Penina for the injuries caused by their
dog.
C.
Damages
Penina has asked for a
total of $6,200 in damages: $5,000 for
pain and suffering at various times, $400 for medical expenses, and $800 for
disfigurement. However, Penina has not proven the full extent of the requested
damages, her injuries were relatively minor, and they have healed. She is entitled to $1,000 for the aggregate
of her claims.
It is so ordered.