By: Newton Anderson
According to the Statista web site, www.statista.com, the number of dogs that lived in households as pets in the United States as of 2017 was 89.7 million, up from 65 million in 2002. While it would appear that most are fairly well habituated to human beings, injuries from dogs do occur. The standard for liability for such an injury for a Tennessee owner has changed over the years.
In the 1914 case of Missio v. Williams, the Tennessee Supreme Court noted the general, common law, rule that owners or keepers of domestic animals were generally not liable for injuries caused by the animal “unless the animal was accustomed to injure persons, or had an inclination to do so, and the vicious disposition of the animal was known to the owner or keeper.” Thus, the “first bite is free” rule did not apply in Tennessee, even then. The court clarified that “knowledge of the owner or keeper that the dog is vicious is sufficient to sustain liability, without showing that it had ever bitten anyone.”
More recently, the Tennessee Legislature passed the Dianna Acklen Act of 2007 in response to the 2006 killing of Ms. Acklen by three dogs while she was taking her regular walk in a rural residential neighborhood in Franklin County. That Act is codified at TCA § 44-8-413. Although the Act states that “the owner may be held liable regardless of whether the dog had shown any dangerous propensities or whether the dog’s owner knew or should have known of the dog’s dangerous propensities”, there are important conditions and exceptions.
On July 24, 2013, Demetria Searcy and her minor son traveled to the home of Walter and Irene Axley for a social visit. The Axleys had an Australian Shepherd named Ruby and there were two interactions with the dog that occurred without incident. The first occurred when Ms. Searcy’s son had petted Ruby on the head while they were on the front porch and later, when all the parties and the dog were inside the Axley living room. The recitation of facts from the court opinion stated that “while in the living room, the Axleys’ dog approached Ms. Searcy and her son, jumped up, and put her paws on their lap. The two petted the dog.” Mr. Axley told the dog to get down a few times and struck it on its rear when it did not listen. The dog got down, went into an adjoining room but returned later. The event began to unfold exactly as it had before but this time, as Ms. Searcy and her son petted the dog it suddenly bit the child in the face causing severe injuries. Mr. and Ms. Searcy filed a Complaint for personal injuries against the Axleys alleging common law negligence but also liability under the Dianna Acklen Act of 2007.
While noting the potential of liability regardless of whether the owner knew of dangerous propensities, the court pointed out that there were conditions precedent to that liability, such as if the owner is unable to keep the dog under reasonable control at all times or if the dog is running at large. Importantly for this case, however, there is also a residential exception. That exception states that if the injury is caused “while the person is on residential, farm or other non-commercial property,” and the dog’s owner is either the owner of the property or an occupant with the permission of the owner, the plaintiff must prove “that the dog’s owner knew or should have known of the dog’s dangerous propensities.” That prior knowledge is often referred to as “scienter”.
The court rejected the Searcys’ argument that they were making two separate and distinct claims, specifically one based on the statute and the other on common law. They contended that the residential exception did not affect any potential liability under the common law. The court disagreed, stating that the provisions of the Dianna Acklen Act of 2007, including the residential exception, are “applicable to ‘any’ claim involving damage caused by a dog on its owner’s property.”
The Axleys filed a motion for summary judgment asserting the following undisputed material facts:
1. While the child was petting Ruby, she gave no indication that she was uncomfortable with the contact or otherwise showed aggression to the child;
2. Ruby bit the child without warning;
3. Ruby had never bitten anyone before;
4. There was no proof to show that the Axleys knew or should have known of the dog’s dangerous propensities.
The court of appeals found that the Searcys were unable to refute the statement of undisputed facts set forth by the Axleys and that they had no right to recover under the Dianna Acklen Act of 2007. The court also determined that the Searcys did not have a common law claim because provisions of the Dianna Acklen Act of 2007 abrogated their claim for general negligence.
This case demonstrates the importance of careful analysis of the entire statute, specifically with regard to dog bite cases and generally. The legislature may giveth in one paragraph and then taketh away in another.
The case discussed is Corey M. Searcy et al. v. Walter Axley et al., appealed from the Circuit Court for Benton County, Charles C. McGinley, Judge; filed by the Tennessee Court of Appeals at Jackson on October 19, 2017. The Opinion was written by Judge Steven Stafford and joined by Judge Andy D. Bennett and Judge Arnold B. Goldin. Note that the Tennessee Supreme Court has not addressed the issues ruled upon in Searcy as no permission to appeal was sought.
Finally, although referred to herein and in the Searcy case as the “residential exception” the statute offers protection while on “farm or other non-commercial property” even if the dog’s owner does not own that property, so long as the dog’s owner “is on the property by permission of the owner or as a lawful tenant or lessee.” This would appear to offer some protection to dog owning hunters who are hunting with permission on the land of another, possibly even while on public land that is open for that purpose, so long as there is no knowledge of vicious propensities. The question that could remain, however, is how to read that exception in light of the strict liability imposed when “the dog is running at large,” as is often the case when hunting.
Newton Anderson is the Managing Member in the Memphis office and focuses on Litigation (Business and Commercial, Employment Practices, Insurance Coverage, Insurance Defense, and Real Estate), Liability (Automobile, Premises, and Products), Alternative Dispute Resolution, Corporate and Business, Insurance Subrogation and Workers’ Compensation law.
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