Dog Bite Child

If your child was under the age of 5, she cannot be blamed by the dog owner.  See Nielsen v. Bell (Utah Supreme Court, 2016 (“We, therefore, adopt the rule that children under the age of five may not be held liable for negligence.  The question of whether a child five or over is capable of negligence is reserved for the fact-finder…”))

A dog owner is allowed to argue that anyone else was at fault in causing the dog bite.  This is true even if the person who was bitten is arguing strict/no-fault liability.

In S.H. v. Bistryski (Utah Supreme Court, 1996), a 3-year-old girl was visiting her aunt in Duchesne.  She apparently wandered over to a neighbor’s yard where a dog was chained, and the dog bit her.  The girl’s parents sued the dog owner for strict liability.  The trial judge allowed the dog owner to argue that the girl’s mother was at least partly to blame for the dog bite due to inadequate supervision.

The Utah Supreme Court agreed with the judge.  “The dog bite statute simply provides that the owner of a dog shall be liable in damages for injury committed by the dog,” the Supreme Court said.  “It does not, however, state that the owner shall be liable for all damages.  While the owner is liable, other parties may also be liable or may have contributed to the injury.”

Nothing in Utah statutes suggests that a dog owner who is strictly liable for a dog bite should pay damages exceeding his share of fault, the court said.  “Thus, although dog owners are strictly liable for damages arising out of injuries committed by their dogs, … the fault of another party may have contributed to the injury and may preclude finding a dog owner responsible for 100% of the damages arising out of such injuries.”

The take away:  Strict liability claims are not as simple as they might sound.  Even if you are suing a dog owner under that theory, you must be prepared to defend yourself against claims that your negligence caused the dog bite.