This article addresses the typical issues in dog bites. The first is whether a dog owner is in violation of the Dog Law when his dog’s leash/chain extends beyond the boundaries of his property, and would thus be negligent per se. The second issue is whether an eight-year-old can be comparatively negligent.
With regard to the first issue, a dog owner who commits an unexcused violation of the Pennsylvania Dog Law is negligent per se, and if the violation is a substantial factor in the plaintiff’s injury, is liable. For the second issue, an eight year old can be comparatively negligent, however, minors between the ages of seven and fourteen are presumed to be incapable of negligence, although that presumption can be rebutted if the minor failed to exercise the same level of care that could be expected of someone their age.
I will address the law as it applies to the following fact scenario: a nine-year-old girl, was walking down the sidewalk of her neighborhood talking on her brother’s cell phone when she was bitten by the defendant’s dog. The dog was chained to an object on the defendant’s property; however, the chain extended beyond the boundaries of the defendant’s property and allowed the dog to roam off of the dog owner’s property.
I. When a dog owner violates 3 P.S. § 459-305, he is negligent per se. The dog owner will be liable if his violation was a substantial factor in causing the victim’s injury.
Under the Pennsylvania Dog Law, it is unlawful for the owner or keeper of a dog to fail to keep the dog “confined within the premises of the owner,” and “firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured.” 3 P.S. § 459-305. An unexcused violation of the Dog Law is negligence per se. Miller v. Hurst, 448 A.2d 614, 618 (Pa. Super. 1982). While Miller held that a violation of the Dog Law is sufficient to establish negligence, liability does not attach unless the violation is a substantial factor in bringing about the injuries sustained. Id at 619.
Under Miller, a dog owner can evade liability by showing that the dog escaped despite the exercise of due care. Id. For example, in Villaume v. Kaufman, the court held that the defendant dog owner could present evidence that the dog broke loose of his leash and chain, which could enable the jury to find that this was not an “unexcused violation of the Dog Law.” 550 A.2d 793, 795 (Pa. Super.1988). Accordingly, the plaintiff must demonstrate proof of negligence to establish accountability for an injury sustained because of a dog bite. Deardorff v. Burger, 606 A.2d 489, 493 (Pa. Super. 1992).
Analysis of Negligence Per Se Issue
While there is no case law with circumstances perfectly mirroring our client’s, both the Pennsylvania Dog Law statute and Miller v. Hurst indicate that a defendant failed to properly restrain her dog. While the dog was leashed, the leash extended beyond the boundary of the property and enabled it to bite the victim. Thus, the defendant failed to confine the dog to her property.
In Villaume, the dog broke loose of its chain, something that was outside of the defendant’s immediate control, meaning that his violation could potentially be excused. Id. In our hypothetical fact scenario, the defendant’s dog was on a leash that extended beyond her property line. The length of her dog’s leash was a fact that our hypothetical defendant should have been aware of. Therefore, her failure to confine the dog within the boundaries of her property is an unexcused violation of the Dog Law, and constitutes negligence per se. The defendant should be liable so long as one can prove that the violation of the Dog Law was a substantial factor in the victim’s injuries.
II. An eight-year-old child is presumed to be incapable of comparative negligence. This presumption can be rebutted if the moving party demonstrates that the eight-year-old did not exercise the level of care of an ordinary eight-year-old.
“[T]he reasonable care required of a minor is measured by a different yardstick - it is that measure of care which other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances.” Kuhns v. Brugger, 135 A.2d 395, 401 (Pa. 1957). “[M]inors between the ages of seven and fourteen years are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached.” Id. Additionally, the same standard of negligence should be applied to minors regardless of whether they are a Plaintiff or Defendant. Dunn v. Teti, 421 A.2d 782, 784 (Pa. Super. 1980).
Analysis of Minor Comparative Negligence Issue
In Kuhns, the Supreme Court of Pennsylvania has held that minors between ages seven and fourteen are presumed to be incapable of negligence, with the presumption getting weaker the closer the minor is to fourteen. 135 A.2d at 401. At eight years old, our hypothetical client is near the bottom of the scale, so the presumption that she could not be negligent should be very strong, although not absolute. In this case, one would need to demonstrate that our client exercised the same level of care that could be expected of another eight-year-old. Given that our hypothetical client was walking down the sidewalk and talking to her father on the phone, and doing nothing to engage or antagonize the dog, it would stretch credibility to argue that she was comparatively negligent at all, particularly when measured by the standard of an eight year old.
In conclusion, the defendant’s use of a dog chain that extended beyond her property line violates the Pennsylvania Dog Law’s requirement that a dog be “confined to the premises of the owner.” This violation constitutes negligence per se. Additionally, the defendant’s violation of the Pennsylvania Dog Law was a substantial factor in causing the injuries our client suffered. Therefore, the defendant should be liable for our client’s injuries.
Second, the standard for judging whether our client can be comparatively negligent should be whether she exercised the same level of care that an ordinary eight-year-old did. It would appear to be rather obvious that our client’s conduct in this matter met this standard.