No “Free Bite” – South Carolina’s Strict Liability for Dog Bites and Attacks
Sometimes man’s best friend is not so friendly. Other times a dog may be overly friendly or playful and cause an injury by jumping or pouncing. In either case, the alleged victim is going to turn to South Carolina’s “dog attack” statute, codified in S.C. Code Ann. § 47-3-110, which provides, in part:
If a person is bitten or otherwise attacked by a dog while the person is in a public place or is lawfully in a private place, including the property of the dog owner or person having the dog in the person’s care or keeping, the dog owner or person having the dog in the person’s care or keeping is liable for the damages suffered by the person bitten or otherwise attacked.
Unlike many states, South Carolina no longer recognizes the “one free bite rule,” which imposed liability against a dog owner only when the owner knew or should have known of the dog’s vicious propensities. In other words, under the common law, there was no liability for the first bite.[i]
Rather, S.C. Code Ann. § 47-3-110 imposes strict liability for dog bites and attacks.[ii] In a strict-liability case, the plaintiff need not prove the defendant’s negligence or intent, and the defendant cannot escape liability by proving a lack of negligence or intent. In short, it is liability without proof of fault.[iii]
Despite this standard, there are several challenges that a defendant may raise to defeat liability:
- The defendant was not the dog’s owner, caretaker, or keeper.
- The alleged victim was not lawfully on the private property where the injury occurred.
- The dog’s conduct did not constitute a bite or other “attack.”
- The alleged victim provoked or attacked the dog first.
Defining a Caretaker or Keeper
Assuming the other requirements are met, a dog’s owner is strictly liable for a bite or attack, even if the dog was in someone else’s care and custody at the time of the injury.[iv] For someone other than a dog’s owner to be liable, the plaintiff must prove that they acted in a manner which manifests an acceptance of responsibility for the care or keeping of the dog.[v] This could include a property owner or landlord who exercises control over, and assumes responsibility for, the care and keeping of the dog.[vi]
Trespassers Not Covered
The statute is applicable to persons bitten or attacked while in a public place or lawfully in a private place, which expressly includes: (a) persons who are on the property in performance of lawful duty, e.g. police officers, postal workers, and (b) persons who are on the property upon the invitation, express or implied, of the property owner or a lawful tenant or resident of the property.[vii] Generally, a jury will determine whether an individual was a licensee, invitee, or trespasser.[viii]
Broad View of “Attack”
Proof of the dog’s evil motive is not required. In fact, owners and keepers are liable for injuries caused by a dog’s jumping or pouncing upon a victim.[ix] The Court has drawn the line and found no liability under the statute where the injury arose from lifting a dog rather than any initiation of contact by the dog.[x]
Victim’s Provocation Defense
In addition to an express exception for law enforcement K-9s under certain circumstances, the dog attack statute does not apply if, at the time the person is bitten or otherwise attacked, “the person who was attacked provoked or harassed the dog and that provocation was the proximate cause of the attack.”[xi]
A plaintiff will likely seek actual damages for any past of future medical care or treatment, pain and suffering, and emotional distress. While the South Carolina courts have not yet determined whether punitive damages are cognizable under the statute, they will likely be sought by plaintiff and are where the dog’s past behavior would become relevant.[xii]
[i] See Nesbitt v. Lewis, 335 S.C. 441, 445, 517 S.E.2d 11, 14 (Ct. App. 1999)
[ii] Id.; Harris v. Anderson Cty. Sheriff’s Office, 381 S.C. 357, 366, 673 S.E.2d 423, 427 (2009) (“Our Legislature has spoken clearly in section 47-3-110 that, as concerns a dog owner’s liability, negligence principles in general and fault in particular have no place.”).
[iii] Restatement (Third) of Torts, Chp. 4.
[iv] Harris, 381 S.C. at 366, 673 S.E.2d at 428 (rejecting public policy argument for a “kennel worker exception”).
[v] Id. at 364, 673 S.E.2d at 427.
[vi] See Nesbitt, 335 S.C. at 446-47, 517 S.E.2d at 14 (holding dog owner’s adult daughter, who owned partial interest in house, was not liable where she had not lived there in over five years, such that she lacked possession and control over the house and dog); Bruce v. Durney, 341 S.C. 563, 573, 534 S.E.2d 720, 726 (Ct. App. 2000) (holding landlord not liable under 47-3-110 where he provided no care or support for dog); Clea v. Odom, 394 S.C. 175, 714 S.E.2d 542 (2011) (holding whether landlord assumed some duty of care or keeping of dog sufficient for 47-3-110 was factual issue for jury and holding landlord could be liable in negligence under Residential Landlord Tenant Act if landlord had actual knowledge of dog’s vicious propensity and landlord failed to remedy situation).
[vii] S.C. Code Ann. § 47-3-110(A).
[viii] Nesbitt, 335 S.C. at 448, 517 S.E.2d at 15.
[ix] Elmore v. Ramos, 327 S.C. 507, 511, 489 S.E.2d 663, 665 (Ct. App. 1997) (remanding for new trial where plaintiff presented sufficient evidence that dog jumped on her, causing her to fall off ramp).
[x] Padgett v. Mercado, 341 S.C. 229, 233, 533 S.E.2d 339, 340 (Ct. App. 2000) (affirming summary judgment in favor of dog owner where animal control officer conceded that dog never bit or touched her and her injury resulted from her own efforts in attempting to lift a heavy dog by its neck from the end of the pole).
[xi] S.C. Code Ann. § 47-3-110(B)(1)-(2).
[xii] Nesbitt, 335 S.C. at 448-49, 517 S.E.2d at 15-16 (finding punitives inapplicable under the facts of the case and declining to rule on argument that punitive damages are never collectible under 47-3-110).