Dangerous or Vicious?
Many dog owners come under fire for owning a specific breed of dog. However, Virginia law makes a point of not distinguishing between different breeds. Instead, the code allows a judge to sort dogs that run afoul of the system into two categories: dangerous or vicious ( Virginia Code §3.2-6540(A). No dog can be put into either category prior to a bite or attack, nor can any dog owner be the subject of a lawsuit for a bite or attack if he or she had no knowledge of the dog’s aggressive tendencies (Virginia Code §3.2-6540.1). This is commonly referred to as the “One-Bite Rule.”
Dangerous and Vicious Dogs
To be considered “dangerous” a dog the dog must have “bitten, attacked, or inflicted injury” on another animal. However, if the attack or bite did not result in serious harm, both animals involved are owned by the same person, or the attack occurred on the offending dog’s home turf, then a court does not have to label the dog “dangerous.” The rules are different if the dog attacks a person. Any dog that attacks a person will be labeled dangerous by the court unless the attack resulted in only minor injury.
For some dogs, the “dangerous” label is insufficient. A dog can also be labelled “vicious” in the event that it kills someone, inflicts serious injury to a person, or continues to exhibit behavior that previously caused the dog to be labelled “dangerous.”
Importantly, there does not need to be a finding of a “Dangerous” or “Vicious” dog for a dog bite victim to prevail in a personal injury case.
Punitive Damages
What happens when the behavior of the dog or its owner is truly egregious and offensive? Can such awful acts give rise to a claim for punitive damages?
Most personal injury cases are about compensatory damages. These are damages designed to make the Plaintiff whole, such as reimbursing medical costs and compensating them for the pain and suffering sustained from their injuries. Punitive damages are designed to punish the defendant (in this case the dog owner), deter the defendant from acting in the same way in the future, and deter others from similar behavior.
So what type of behavior on the part of a dog or dog owner can give rise to a punitive damages claim?
There is no specific code section that authorizes this type of claim. Instead, we act based on previous rulings from the collective courts in Virginia. Punitive damages may be found in dog bite cases where (1) the owner acted with actual malice or (2) the dog owner’s behavior was willful and wanton. This means that they acted with “such recklessness or negligence as to evince a conscious disregard of the rights of others.”
There are no cases that define either of these terms as they relate to dog owners and dog attacks. However, to find a dog owner acted with “actual malice,” you would likely need facts that prove the dog owner purposefully set the dog on another person or gave a command to the dog to attack.
The law is less clear on how to prove the Defendant acted in a willful or wanton manner. A few important questions to ask include:
- How many times did the dog previously attack another animal?
- How many times did the dog previously attack a person?
- How many times did the dog act in an aggressive manner towards people other than the owner?
- Was the owner ever recommended to get training for the dog?
- Did the dog owner follow up on the recommendation?
- What steps did the dog owner take when taking the dog out for a walk or inviting people into his or her home?
- What did the dog owner tell those guests regarding the nature of the dog?
While these are important questions, most of them cannot be answered simply by looking at a report from animal control. If you or someone you know is injured by a dog in Virginia it is very important to examine the specific facts, circumstances, local ordinances, and restrictions that may apply.
In Virginia, these claims are often more complicated than people might imagine. The experienced personal injury attorneys of Allen & Allen regularly deal with dog bite cases and are happy to provide a free consultation to determine whether recovery for a person injured by a dog bite can be obtained.
