Dog Bite Incident Highlights Review of Ownership versus Custody for Liability

In general, owners are responsible for any damage caused by the things that they own. Animals are no exception. For example, if you own a cow and it wanders into the road and a car hits it, then you are likely responsible for the damages related to that accident. Damages caused by household animals, such as dogs, are similar. Louisiana Code art. 2317.1 provides that “the owner or custodian of a thing is answerable for damage.” While owner is a relatively simple concept, custodian may not be.

The classic example of a custodian is someone who is watching a household pet while you are away. It is likely that if your dog bites someone while a caretaker is walking him, both you and the caretaker may be liable for the damage caused by the bite. In a recent case arising from the Parish of Jefferson involving a dog bite, the court explained the caretaker concept in a little more depth.

In that case, a family was visiting their father in a hospice and their dog accompanied them. The dog bit another visitor when the visitor attempted to pet him. The bitten individual has a permanent scar and lost feeling in his finger. All of the parties admitted that it did seem odd that the dog bit because he had never bitten anyone before and was not acting aggressive. In fact, the dog was sitting in the owner’s lap at the time of the incident. The dog had no history of aggressiveness, and all of its shots were up to date.

The question in the case on appeal was whether the hospice should be liable for damages in addition to the owner of the dog. That is, whether the hospice could be considered a custodian of the dog under Louisiana law. The hospice had dog policies in place where each dog was supposed to have up to date shots and no history of aggressiveness. The hospice had a general police to let dogs in because they have a “therapeutic effect, help with depression, and reduce blood pressure and incidents of stroke and heart attack.” In this case, the dog did not go through the normal screening process because the hospice’s enforcement of the rules was somewhat lax. However, the hospice pointed out that had this dog gone through the screening process, there was very little doubt that it would pass.

The Court explained, “[c]ustody, distinct from ownership, refers to a person’s supervision and control (grade) over a thing.” There is a two-part test to determine custody. First, the custodian has a right of direction and control over the thing. Second, the court should consider whether the custodian receives any benefit from the thing. Under this analysis, then, the Court determined that the hospice had very little control over the dog, even though they could have asked the dog to leave the premises. Second, although the hospice may derive some benefit in the increased wellbeing of their patients, that is not enough to create a custodial relationship.

Because the hospice is a business, the Court also considered that the “owner or operator of a facility has the duty to exercise reasonable care for the safety of persons on his premises and the duty to not expose such persons to unreasonable risk of injury or harm.” The Court explains that the unreasonable risk of harm analysis is a balance between the likelihood and magnitude of the harm against the benefit of the thing. The Court points out that the hospice had a dog policy in place, and this dog showed very little likelihood of aggressiveness. In addition, having dogs visit patients presents some noted benefits, especially for family-members of the dog. Therefore, the Court concluded that not only was the hospice not a custodian of the dog, but the dog also did not present an unreasonable risk of harm. As a result, the hospice was not liable for any of the damages related to the dog bite.

Some of the legal concepts can be difficult to use because the law develops their own definitions that may not be the same as everyday language. The Berniard Law Firm can help you through these hurdles in the law.

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