TBA Law Blog


Posted by: John Day on Jan 1, 2018

Journal Issue Date: Jan 2018

Journal Name: January 2018 - Vol. 54, No. 1

Donna Acklen of Franklin County, Tennessee, died as a result of injuries she received when she was mauled by two dogs as she walked on a road near her home. Her death gave rise to the Donna Acklen Act of 2007[1] (the Act), which established a statutory cause of action against dog owners for dog attack injuries and death. The Act imposes strict liability on dog owners[2] for dog attacks, subject to several important exceptions.

The passage of the statute left several questions unanswered, one of which was whether the common law of responsibility for dog bites occurring on the dog owner’s land survived the enactment of the statute. The Tennessee Court of Appeals recently answered this question “no.”[3]

The litigation that answered this question arose after Demetria Searcy and her minor son visited the home of the defendants Walter and Irene Axley. While visiting in the Axleys’ home, the Axleys’ dog, an Australian Shepherd named Ruby, bit the child on the face, causing severe injuries. A lawsuit followed, with claims asserted against the Axleys under both the Act and the common law.[4]

Under the Act, when a dog causes injury to a person on the dog owners’ property, the Act’s “residential exception” to strict liability is triggered. The exception requires the plaintiff to prove that “the dog’s owner knew or should have known of the dog’s dangerous propensities.”[5] The Court of Appeals affirmed the dismissal, finding that plaintiffs failed to provide sufficient evidence that Ruby might bite someone.[6]

Importantly, the Court of Appeals ruled that the language of the Act abolished any common law claim arising out of a dog attack subject to the residential exception of the Act. The holding turned on the language of the Act, which provides that “in any civil claim” the plaintiff has the burden of proving that “the dog’s owner knew or should have known of the dog’s dangerous propensities.”[7] Citing similar language from the Tennessee Health Care Liability Act,[8] and case law holding that such language supplanted the common law of medical malpractice, the court determined that the Act did the same when a civil suit arises against a dog owner for a dog attack on the premises of the dog owner.

This segment of the decision is brought to your attention not because it is surprising or controversial. And, frankly, there is very little difference, if any, between the common law and the Act for a dog attack on the dog owner’s property because the proof necessary to establish liability of a dog owner for a dog attack is virtually the same.[9] Rather, this decision is important because, as our General Assembly continues down the path of codifying tort law, we need to remember the words chosen by the legislature that purport to create a cause of action may eliminate the cause of action as it existed at the common law — a preemption, of sorts. Thus, we should be on the lookout for such legislation, and raise a voice during the legislative process to help the legislature understand exactly what it is doing when it is doing it (which is not a foregone conclusion).

While the Searcy opinion may have answered one question, some will argue that it left another. There is some language in the opinion that might be construed as holding that the Court of Appeals has created an “every dog gets one free bite” rule when the bite occurs on the dog owner’s property.[10] The test established by the statute is whether the dog owner knew or should have known of the dog’s dangerous propensities. The purpose of the broader “dangerous propensities” language is a recognition of the duty of dog owners to train their dogs to act in a responsible way around other people so as not to them harm, and, if they cannot, to exercise control over the animals to prevent harm to humans. There is nothing in the language of the statute that requires or suggests that the owner must have prior knowledge that the dog had previously engaged in the precise activity of the type that injured the plaintiff.

A dog can present a danger to humans in ways other than biting them. For instance, a dog can knock down a human (particularly the young or the feeble) by jumping on her or running between his legs. A dog can be vicious (without actually biting) by aggressive growling and barking, or racing toward or lunging at a visitor, which in turn, can cause a person to take evasive action that can result in a fall and injuries.[11] A dog may launch an unprovoked attack on other dogs, including those on a leash, which alert that dog’s owner to a risk of harm, either from attempting to protect his or her dog or a fall-down risk. A dog owner who is or should be aware of these types of actions — or a history of biting — should restrain the dog when visitors come to the property and not make the dog accessible to visitors, especially the infirm or children. If the dog is permitted to roam the property in a fenced enclosure, visitors should be warned of the dog’s presence so that they may decide whether to enter the property or not.

What’s the take-away? The General Assembly has declared that a plaintiff injured by a dog on the dog owner’s property must prove that the owner knew or should have known of the dog’s dangerous propensities. Thus, a dog bite plaintiff should be able to meet that burden by proof of the owner’s knowledge of any prior conduct by the dog that created a risk of harm to a human, whether by prior dog bites or otherwise.

Notes

  1. Tenn. Code Ann. §44-8-413.
  2. A dog owner “means a person who, at the time of the damage caused to another, regularly harbors, keeps, or exercises control over the dog, but does not include a person who, at the time of the damage, is temporarily harboring, keeping, or exercising control over the dog; provided, however, that land ownership alone is not enough to qualify a landowner as a regular harborer even if the landowner gave permission to a third person to keep the dog on the land ….” Tenn. Code Ann. §44-8-413 (e)(1).
  3. Searcy v. Axley, No. W2017-00374-COA-R3-CV, 2017 WL 4743111 (Tenn. Ct. App. Oct. 19, 2017). This opinion was released one month after oral argument, part of a welcome trend of speeding up the appellate process by our Court of Appeals.
  4. Id. at *1-2.
  5. Tenn. Code Ann. §44-8-413 (c)(1).
  6. Searcy, at *21.
  7. Tenn. Code Ann. §44-8-413 (c)(1).
  8. Tenn. Code Ann. §29-26-101 et seq.
  9. Under the common law, when the attack occurred on the dog owner’s premises the plaintiff had to prove “the owner … knew or should have known about the dog’s dangerous propensities.” Thompson v. Thompson, 749 S.W.2d 468,470 (Tenn. Ct. App. 1988). One case mentioned that the owner must be aware “that the animal is vicious or has mischievous propensities.” Fletcher v. Richardson, 603 S.W.2d 734, 735 (Tenn. 1980).
  10. For example, the court cited Wells v. Beach, 315 S.E.2d 23 (Ga. Ct. App. 1984) for the proposition that “a dog owner’s liability must be predicated solely upon his knowledge that the errant animal has the propensity to cause the specific type of harm from which the cause of action arises.” Searcy, at *6. This is the law of Georgia, but I am unaware of any Tennessee court that has set such a standard and, indeed, at least one Tennessee appellate decision applying the common law suggests (but did not expressly hold) that proof of a prior bite is not required in a dog bite case. Eden v. Johnson, 1996 WL 474428 *2 (Tenn. Ct. App. Aug. 21, 1996) (stating defendants “produced an affidavit in support of their motion for summary judgment attesting to the fact that the dog had never bitten anyone since they had owned him, nor had the dog otherwise exhibited any dangerous propensities.”)
  11. The Court of Appeals has previously held that the fact that a dog is a “big dog” does not in and of itself mean that the dog has dangerous propensities. Moore v. Gaut, No. E2015-00340-COA-R3-CV, 2015 WL 9584389 (Tenn. Ct. App. Dec. 30, 2015).

John A. Day JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood and Murfreesboro. Contrary to popular belief, he does not dislike animals; indeed, he regularly consumes beef, pork and chicken.