Case Review: Tennessee Dog Bite Law

The Tennessee Court of Appeals recently interpreted the Tennessee dog bite law, T.C.A. 44-8-413, in Moore v. Gaut, __ S.W.3d __, 2015, No. E2015-00340-COA-R3-CV, (Tenn. Ct. App., filed December 30, 2015). The Court noted that the statute, enacted in 2007, had not previously been the subject of an appellate review. The case, originating in Knox County, also involved an application of an exception to the general law in Tennessee that dogs do not get one-free-bite.

In November 2012, Plaintiff went to the Defendant’s residence to service his satellite dish whereupon he encountered the Defendant’s dog, a Great Dane, in the back yard. Plaintiff contended that the Defendant’s father approached him and requested the Plaintiff “introduce himself” to the dog. Plaintiff pled that “upon approaching the dog, the dog jumped up and bit the Plaintiff” in the face. Plaintiff filed a law suit in March 2013 which the Defendant answered denying liability. Defendant also filed a motion for summary judgment with his affidavit in support of his motion stating, among other things, “my dog has never bitten or attacked anyone.” Apparently, Plaintiff did not rebut Defendant’s assertion that his dog was not vicious or aggressive in his response to Defendant’s motion. 

The Plaintiff had another theory of liability that the trial court called the “big dog exception.” Plaintiff’s theory was that a Great Dane is a large dog so the Defendant should have known the dog was dangerous due to the dog’s size. The trial court granted Defendant’s motion for summary judgment finding that there was no evidence the dog had a history of viciousness or the dog’s mere size was evidence that the dog was dangerous.

On appeal, Plaintiff renewed his two unsuccessful arguments from the trial court. The Court of Appeals first discussed the applicable summary judgment standard in light of the recent ruling by the Tennessee Supreme Court in Rye v. Women’s Care Ctr. Of Memphis, MPLLC, __ S.W.3d __, 2015 WL 6457768 (Tenn., filed October 26, 2015). The Court found that there was sufficient evidence to uphold dismissal of Plaintiff’s complaint at the summary judgment stage of the lawsuit.

The Court then discussed the extensive history of common law principles governing dog bite cases in Tennessee starting in 1914. The general rule at common law regarding a dog owner’s liability for a dog bite or attack was that an owner was not liable for a dog bite unless there was evidence that the owner knew or should have known of the vicious nature or aggressive behavior of the dog. In other words, the dog got one-free-bite as only the second (and subsequent) bites would hold the owner liable for damages to the victim. The Court noted that appellate decisions regarding dog bite cases have continually upheld this principle.  (The enactment of the dog bite statute in 2007, however, changed the law significantly as discussed below.)

Notably, the Court cited a 1964 case in which “the Supreme Court observed that a dog’s playfulness or mischievousness can be a “dangerous propensity” in addition to a “vicious” temperament.” Moore citing Alex v. Armstrong, 385 S.W.2d 110, 114-115 (Tenn. 1964). (Emphasis supplied by this author.) In short, a dog need not bite a victim for a tort action to arise. It appears a “playful” dog that merely knocks a victim to the ground in an effort to be friendly, but, nevertheless causes injury to the victim may subject the owner to liability.

A key distinction in Moore, however, was the Plaintiff received his injuries on the Defendant’s residential property. Under these circumstances, a major exception to the dog bite law - sometimes called the ‘residential exception’ – comes into play. T.C.A. 44-8-413(c)(1). The statute provides some limited relief from civil liability for the dog owner when a dog bite occurs on residential, farm or other noncommercial property by the owner’s dog, to wit:

If a dog causes damage to a person while the person is on residential, farm or other noncommercial property, and the dog's owner is the owner of the property, or is on the property by permission of the owner or as a lawful tenant or lessee, in any civil action based upon such damages brought against the owner of the dog, the claimant shall be required to establish that the dog's owner knew or should have known of the dog's dangerous propensities.  (Emphasis added.)

In short, the residential owner’s dog does get one-free-bite if the facts fit within the parameters of the "residential exception." By the way, Tennessee is the only state that has a "residential exception" in its dog bite law.

The Court found that the residential exception applied to the facts of this case. It upheld the dismissal by the trial court finding “that Defendant by testifying in his affidavit that his dog never bit or attacked anyone before Plaintiff, has negated the element of knowledge or notice of the dog’s dangerous propensity.” Moore at pg. 9. As regards the Plaintiff’s alternate argument that this Court should create a “big dog exception” to the dog bite law, the Court declined to acknowledge an exception “based solely on a dog’s size or breed.”  Moore at pg 9. It appears, therefore, this Court is not inclined to identify any specific dog as a “dangerous breed” or as being dangerous or vicious as a matter of law.  Whether the Court would label a dog as being a member of a “dangerous breed” under a different set of facts – such as a dog bite with serious injuries – remains to be seen.

Ultimately, the ruling in this case indicates that the Court of Appeals, in a case of first impression, approves of the Tennessee dog bite law, including the residential exception. The common law rule that “every dog gets one-free-bite” is no longer the law in Tennessee with the enactment of the dog bite law in 2007, i.e., dog owners are responsible for their dog’s behavior. The notable exception is a situation in which a dog bite or attack occurs on the owner’s property where the one-free-bite rule applies under certain circumstances.

And, a final observation -- the Defendant asked the Court for sanctions on the grounds the appeal was frivolous. The Court simply stated “we do not find this to be a frivolous appeal.” Is the Court holding the door open for a change in the dog bite law or are they simply saying, “nice try – no harm, no foul?”  Watch this space.

Jonathan Stephens is a member of the TBA Animal Law Section

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