Synopsis: This article discusses the status of Missouri law as it relates to liability for injuries caused by domestic animals in general, and dogs in particular.

Fido. Spot. Rover. King. Buttons. Princess. We all know them as man's (and, save diamonds, woman's) best friend. We love them, feed them, walk them, play with them, scold them, and lament when they chew up our favorite shoes. They are a part of the family, and when obedient they are a source of pride and joy. But what happens when the unfortunate occurs and they bite someone? What is our liability as owners? This article will discuss the status of Missouri law as it relates to liability for injuries caused by domestic animals in general, and dogs in particular.

Historical Perspective

Dogs have always maintained a special place in our existence and culture. The earliest remains of domestic dogs date back to the Mesolithic Period, or Middle Stone Age, and dogs have lived in close association with humans for approximately 10,000 years.¹ Judge Stone's colorful analysis of the revered historical value of canines in State ex rel. Kroger Co. v. Craig² is a must-read for the dog-loving literati, beginning with the following passage:

To the ancients, the dog was more than a pet in the household, a servant in the field, and an assistant in the hunt. He was an object of ceremony, reverence and veneration as well. The Egyptians regarded him as a symbolic guide and protector of the dead, crowned their god Anubis with a doglike head, fashioned images of the dog on the walls of their burial chambers and temples, ceremoniously embalmed his body and entombed it in the special burial ground set aside for dogs in every town, and even built a city, Cynopolis, in his honor.³

Based on this treasured history, the reason that the dog has earned a special place in the law, as well as in our hearts, is also artfully explained by Judge Stone:

Since, down through the ages, the dog has earned and has merited acceptance as man's best friend, small wonder then that the law long ago recognized dogs as ordinarily harmless and classified them as animals domitae naturae, i.e., domestic animals, rather than as animals ferae naturae, i.e., wild animals, and that, in an action against the owner or harborer of a dog for injury inflicted by such animal, defendants' scienter (i.e., actual or constructive knowledge) of the vicious or dangerous propensities of the dog became and still is (except where removed by statute) an essential element of the cause of action.⁴

The concept that the owner's⁵ knowledge is an important, necessary element in assessing the owner's liability for injury caused by his animal is not a modern concept, but traces its roots back to ancient times, where the law of the land was "If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death."⁶ In more recent history, the earliest reported Missouri case which set forth the standard for liability for injuries caused by a dog was Staetter v. McArthur,⁷ where the Missouri Court of Appeals announced: "In order to make the owner of an animal mansuete naturae (tamed and domestic) responsible for injuries inflicted by such animal, evidence of the prior mischievous disposition of the animal, and of the owner's previous knowledge of such disposition, are essential." The issue was first addressed by the Supreme Court of Missouri in 1920 in Clinkenbeard v. Reinert.⁸ There, the Court stated: "[W]e rule that if a person keeps unrestricted a vicious dog, after he has knowledge of that fact, he is liable for the damages resulting from the acts of such animal in the exercise of the vicious propensities of which the owner or keeper or harborer had knowledge."⁹ In addition to the general rule for determining liability, the court in Staetter added that "the formula . . . used in the [formbooks] . . . accustomed to bite, does not mean that the keeper of a ferocious dog is exempt from all duty of restraint until the dog has effectually mangled or killed one person."¹⁰ Thus, contrary to popular belief, Missouri has never had a "one-bite" rule.

Strict Liability Vicious Propensities

Because of the state of law, the primary focus in dog bite cases is not on what the owner did or failed to do; the analysis centers on what the owner knew or could have known regarding the dog's propensities. In this respect, the law imposes strict liability on dog owners. An owner will be liable if the owner knew or could have known about the dog's propensities. It matters not how careful and cautious the owner is in attempting to prevent harm. In Clinkenbeard v. Reinert,¹¹ the Supreme Court of Missouri stated that the "gist of the action . . . is not negligence in the manner of keeping the dog, but is for keeping it at all." More recently, the Missouri Court of Appeals for the Eastern District held that evidence of the owner's reasonable care in restraining the dog was not a proper matter for the jury to consider in a strict liability case.¹² It should be noted that too much evidence of an owner's extreme care in restraining a dog can backfire, for an argument can be made that the owner who takes extra precautions does so because they know their dog is likely to cause harm.

Missouri courts have used various terms to classify broadly a dog's characteristics, the knowledge of which will trigger liability: "vicious tendencies," "vicious propensities," "dangerous propensities," "tendency to injure humans," "dangerous tendencies," etc. (The most oft-used phrase is "dangerous propensities," which is the phrase used in this article.) While the courts have not clearly defined what actually constitutes "dangerous propensities," they have taken occasion to set forth what does not constitute "dangerous propensities." In Boyer v. Callahan,¹³ the court held that evidence that a dog was large, was capable of jumping a six-foot fence, and had a propensity to jump at and scare people was not sufficient to constitute a propensity of the dog to bite or otherwise harm people. In Gardner v. Anderson,¹⁴ evidence that a dog barked at people, growled, jumped through a window, chased and snapped at children on bicycles was not sufficient to establish a dangerous propensity and the court determined that plaintiff failed to make a submissible case. Likewise, other "dog-like" characteristics have been determined not to constitute dangerous propensities in and of themselves:

Barking, running loose, jumping, and lunging are activities in which all dogs engage and, absent further showing, do not alone justify a finding of vicious propensities. The same is true of jumping at or scaring people where there is no evidence of any propensity of the dog to bite or otherwise harm people. The use of a dog chain is not in itself evidence of a dog owner's knowledge of a dog's vicious propensity. To hold otherwise "would put the dog owner in an impossible position of not knowing whether to restrain or let his dog run loose. There is no obligation to restrain until the duty is evident as shown by all of the reported cases."¹⁵

Somewhat on the other side of the coin, some courts have held that certain activities of the dog, while not necessarily constituting a vicious propensity, do evidence a tendency to injure persons and may result in liability. In Boosman v. Moudy,¹⁶ a large malamute named Tosca had a propensity to jump on people and engage in a playful tug-of-war with their clothing. The owner's children played with him in this manner and sometimes the play became a little rough, but this propensity was not discouraged. The Missouri Court of Appeals for the Western District held that "[a]ny tendency of a dog to injure persons, whether the dog acts from a purpose to do bodily harm, from ill-temper, or only playfulness, is a dangerous propensity for which a keeper who has reason to know of such habit will be liable."¹⁷

Similarly, in Dansker v. Gelb,¹⁸ a dog of whom the garbagemen were afraid, and whom the family talked about giving away, had a propensity to jump up on people to greet them. As plaintiff reached the top of a flight of stairs, the dog jumped up to greet her, causing plaintiff to step backwards and fall down the stairs. On a prior occasion, the dog had lunged at a neighbor, causing the neighbor to injure his back in jumping to avoid the dog. Even though the dog was good with children, and just liked to jump on people, the owner's knowledge of the dog's propensity to do so was sufficient to impose liability.

Premises Liability Standard

The basics of the foregoing analysis are familiar to most attorneys: if a dog has dangerous propensities, and the owner has knowledge thereof, the owner will be liable, even though there is no negligence on the part of the owner. But what about situations where the owner's actual or constructive knowledge cannot be proven? Is that the end of the inquiry?

Although the strict liability theory of dog bite cases is the more familiar one, there is another theory under which the law allows a plaintiff to proceed against an animal owner: premises liability. The rationale is that an animal present on his owner's premises constitutes a "condition" on the land. If this "condition" is such that the premises are not reasonably safe, then the land/animal owner may be liable. At that point, the traditional analysis comes into play, with determinations as to the person's status on the land (invitee, licensee, or trespasser) and the duty owed to him.¹⁹

This is by no means a new approach in Missouri law; the concept of applying premises liability principles to an animal-attack case goes back to 1939. In Alexander v. Crotchett,²⁰ plaintiff was employed to assist in driving cattle at the stockyards. In doing so, plaintiff was charged by a bull and was injured. The court determined that, while the bull may have been dangerous, there was no evidence that its owner had knowledge thereof. However, in an unprecedented twist, plaintiff argued that he was an invitee upon the land and, therefore, the measure of liability should fall under premises liability analysis rather than the rules for domestic animals. The appellate court agreed with plaintiff's rationale, but concluded that, since under premises liability law (as it then existed) the landowner only has a duty to warn of known dangers, there still was no liability since the landowner was unaware of the bull's dangerous propensities. Despite the court's ruling, the stage was set for a new chapter in liability for harm caused by domestic animals.

The World According to Duren

In 1991 the Supreme Court of Missouri revisited and explored, in depth, the state of Missouri law regarding liability for domestic animals. Duren v. Kunkel²¹ involved a fact situation substantially similar to that in Crotchett. Duren was assisting Kunkel in separating cattle in preparation for castration and calf immunization. Kunkel owned a limousin bull, which he requested Duren to move to another location on the farm. While doing so, the bull attacked Duren. Duren sued Kunkel under two theories: strict liability and ordinary negligence. The trial court refused to allow Duren to submit the negligence claim to the jury, and he appealed. With respect to the negligence claim, the Supreme Court picked up right where the Court of Appeals in Crotchett left off. The Court, en banc, relying in part on Crotchett and in part the Restatement (Second) of Torts, stated that the "duty [owed] to invitees includes the duty to eliminate or warn of dangerous conditions of which the defendant knows, or in exercise of reasonable care should have known."²² The Court then ruled that the trial court erred in refusing to allow Duren to submit his case to the jury under an ordinary negligence theory.

As mentioned above, the Supreme Court's rationale regarding the ordinary negligence claim was not novel; it was first introduced more than 50 years prior in Crotchett. However, as to the strict liability analysis, the Court, without fanfare and with little explanation, revised the standard for determining strict liability for dangerous domestic animals. The strict liability rule set forth earlier in this article is the one that most of us learned in law school and with which most of us are familiar: an owner will be liable for harm caused by his animal if the animal has dangerous propensities, and the owner has reason to know thereof.

In Duren, however, the Supreme Court of Missouri added a new requirement under the strict liability analysis by adopting the Restatement (Second) of Torts § 509(1) (1977), which provides:

A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing harm. (Emphasis added)

From a literal reading of § 509, it appears that just showing dangerous propensities is no longer sufficient to establish strict liability; a plaintiff is now seemingly required to show that the dangerous propensities were abnormal for that class of animal. In applying this new test to the facts in Duren, the Supreme Court found that Duren did not make a submissible case because he failed to show that this bull, of the limousin breed, was different from any other limousin bulls. The Court specifically noted that, according to the evidence, limousin bulls are naturally disposed to be aggressive, and there was no showing that defendant knew that this bull was abnormally dangerous.

Is this a new standard for domestic animals? Is there now required a showing of abnormally dangerous propensities, as opposed to just dangerous propensities? Since Duren, no Missouri appellate court has directly addressed that question. However, the Court of Appeals for the Western District²³ and Eastern District²⁴ have both cited to Duren and § 509(1) of the Restatement as correctly stating the rule in Missouri: that the possessor of a domestic animal will be held liable if he knows or has reason to know that his animal has dangerous propensities abnormal to its class.

Future Concerns

The natural question that immediately flows from this new standard is "What constitutes a 'class'?" Are all dogs to be considered as one class of animal, or are collies considered to be a separate class from greyhounds? In determining "abnormally dangerous propensities," is a chihuahua to be measured against all other dogs, or just against other chihuahuas? The Supreme Court's opinion in Duren suggests that the dangerous propensities of a subject dog would be measured by the dangerous propensities of that breed of dog, not all dogs in general. The Court in Duren specifically stated:

Even giving plaintiff the benefit of every reasonable inference, the evidence falls short of establishing that Kunkel knew or should have known that the bull in question had a vicious propensity different from other bulls of its breed or class. Thus, a case for strict liability was not established.²⁵ (Italics added)

Proponents of Duren argue that this reasoning makes sense; otherwise, the owner of a basset hound, judged against all other dogs as a group, would never be liable. Conversely, the owner of a pit bull would always be found liable, even though the propensities of the subject pit bull may not be abnormally dangerous for pit bulls. Opponents of Duren argue just the opposite -- that under the Court's rationale, the owner of a vicious pit bull would never be found liable, since it would be highly unlikely to find a pit bull that is abnormally dangerous, as compared to all pit bulls as a class.

The second problematic area is this: If a dog is to be judged only by other dogs of its class, how can it be conclusively determined to what class a given dog belongs? Purebreds are easy, but there is also the vast majority of lovable mixed breeds, crossbreeds and mutts. Is a dog that is a Labrador/German Shepherd mix to be judged by the propensities attributable to Labrador Retrievers, or German Shepherds? Should there be a separate class of dog called the Lab/Shepherd mix, which has its own set of common propensities, or are some sort of Mendelian gymnastics required to force a mixed dog into an established category?

The third problem is more of a practical, legal problem. After a conclusion is reached as to what class the dog belongs, the issue remains as to how one meets the burden to show that the dog had dangerous propensities abnormal to that class. Logically speaking, one would first have to show what dangerous propensities are normal for that class, then show how the subject dog's dangerous propensities were abnormal. In doing so, one would also have to examine whether expert testimony is required to show what dangerous propensities are normal for a given breed of dog, or whether that is something that is within the understanding and realm of knowledge of the average juror. In Duren, a bull expert was used to explain the normal propensities of the limousin bull in comparison with the propensities of the bull in question, but the Court did not state that expert testimony was necessarily required. It is fair to presume that the average juror is not familiar with the normal propensities of the different classes of bull, so expert testimony would be necessary. However, does the requirement for expert testimony depend on the type of animal? Would an expert be required for goats, but not for horses? With respect to dogs, the requirement for expert testimony may also depend on the type of dog, given that the average juror is probably more familiar with the dangerous propensities of a German Shepherd than those of a Lhasa Apso.

Conclusion

The rules and standards regarding an owner's liability for a dog bite have basically remained the same for the past 100 years. An owner or possessor of a dog is liable if the owner or possessor had knowledge of the dog's dangerous propensities. The owner's exercise of due care in restraining the dog is not a factor, and the fact that the dog has never bitten or attacked anyone does not absolve the owner or possessor of liability.

Under Missouri law, a plaintiff can proceed under two theories of recovery: strict liability and ordinary negligence. In either case, a plaintiff is required to prove the dangerous propensities of the dog, and the owner's knowledge thereof. Under the ordinary negligence theory, though, a plaintiff must also show that the owner failed to warn of or failed to act to prevent the harm. Also, under an ordinary negligence theory, depending on the plaintiff's legal status on the premises, other legal issues come into play, such as the plaintiff's knowledge of the dog's dangerous propensities and the plaintiff's comparative fault.

With the Supreme Court's decision in Duren v. Kunkel, a new question is raised as to whether the dog's propensities have to be abnormally dangerous for the dog's class in order for the owner or possessor to be liable. A new question is also raised as to whether expert testimony is required in certain cases or in all cases to establish that the dog's propensities are abnormally dangerous with respect to other dogs in its class.

The foregoing are just some of the unresolved issues remaining after Duren which the courts will most likely decide on a case-by-case basis.

Footnotes

1 Grolier's Encyclopaedia, 1993.

2 329 S.W.2d 804 (Mo. App. S.D. 1959).

3 Id. at 808.

4 Id.

5 For convenience, this article refers to "owners" throughout, although the laws and principles discussed herein also apply to "possessors" of dogs as well.

6 Exodus 21:28,29 (King James Version).

7 33 Mo. App. 218, 221 (1888).

8 225 S.W. 667 (Mo. banc 1920).

9 Id. at 669.

10 Staetter v. McArthur, 33 Mo. App. 218, 221 (1888).

11 225 S.W. 667, 668 (Mo. banc 1920).

12 Lavin v. Carroll, 871 S.W.2d 465 (Mo. App. E.D. 1994).

13 406 S.W.2d 805 (Mo. App. E.D. 1966).

14 417 S.W.2d 130 (Mo. App. W.D. 1967).

15 Frazier v. Stone, 515 S.W.2d 766, 769 (Mo. App. S.D. 1974).

16 488 S.W.2d 917 (Mo. App. W.D. 1972).

17 Id.

18 352 S.W.2d 12 (Mo. 1961).

19 Garrett v. Overland Garage & Parts, Inc., 822 S.W.2d 188 (Mo. App. E.D. 1994).

20 124 S.W.2d 534 (Mo. App. W.D. 1939).

21 814 S.W.2d 935 (Mo. banc 1991).

22 Id.

23 Barnett v. Rowlette, 879 S.W.2d 543 (Mo. App. W.D. 1994).

24 Mathes v. Nolan, 904 S.W.2d 353 (Mo. App. E.D. 1995).

25 Duren, 814 S.W.2d at 938.

1997, Keith A. Cutler

Mr. Cutler is a partner with the law firm of James W. Tippin & Associates in Kansas City. He is a 1986 graduate of Morehouse College (B.S.) and a 1989 graduate of the University of Missouri at Kansas City (J.D.). Mr. Cutler is also president of the Kansas City Metropolitan Bar Association Young Lawyers' Section.