Legislature takes bite out of “one free bite rule.”

One “free bite rule” had been an erroneous law that for many years deterred bite victims from proper compensation because the victim could not prove that the owner has actual or constructive knowledge of the dog’s vicious propensities.  However, in 2007 Tennessee established strict liability for certain dog bite injuries but not others. The Dianna Acklen Act of 2007 (T.C.A. sec. 44-8-413) provides statutory liability for dog bites under specific circumstances.

Subdivision (a) creates a two-part duty: a dog must be under reasonable control and not running at large. The duty is violated when a dog is not under reasonable control even if it is not running at large (for example, a dog running loose on the owner’s unfenced front lawn). “A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.”

However, the legislature in their often erroneous legislation allowed certain exceptions to remain.  There is no liability for a dog that is doing police or military work or protecting someone from being attacked, or is securely confined in a kennel or something similar. There is no liability if the victim provoked the dog. There is no liability for an attack that occurs on residential, farm or other noncommercial property owned, rented or leased by the dog owner, or occupied by the dog owner with permission, unless the victim proves scienter. This last exception is referred to as the “residential exception.”

A dog owner may be held civilly liable for the damages caused by his dog under the “scienter” cause of action, also known as “common law strict liability” and the “one bite rule.” In Fletcher v. Richardson, 603 S.W.2d 734, 735 (Tenn. 1980), the court stated:

“The owner or keeper of the dog is not answerable for injuries done by it when in a place it had a right to be, unless the dog was in fact vicious or otherwise dangerous, the owner or keeper knew, or under the circumstances should have known, of the dangerous disposition of the animal, and the injuries resulted from the known vicious or dangerous propensity of the animal. The basic key to recovery of damages for injuries caused by a dog is the knowledge of the owner or keeper that the animal is vicious or has mischievous propensities.”

Plaintiffs suing for injuries or death caused by a dog bite must prove three elements. “First, they must prove that the defendant owned the dog. Second, they must prove that the defendant’s dog caused the injuries. Third, they must prove that the defendants knew or should have known about the dog’s dangerous propensities.” Eden v. Johnson, No. 01A01-9603-CV-00141, 1996 WL 474428, at *2 (Tenn. Ct. App., Aug. 21, 1996) (citing Thompson v. Thompson, 749 S.W.2d 468, 470 (Tenn. Ct. App. 1988)); See Fletcher v. Richardson, 603 S.W.2d 734, 735 (Tenn. 1980) (“the basic key to recovery of damages for injuries caused by a dog is the knowledge of the owner or keeper that the animal is vicious or has mischievous propensities”).

About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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