Welcome back to Ask a Lawyer, wherein I, a lawyer, respond to your questions. Got a vexing legal issue? Send it over, or drop it in the comments below. Today’s query:
I live in a suburban neighborhood in Richmond, Va. Recently, neighborhood kids cut through my unfenced yard from the next block. My dog was not pleased and essentially chased them off. If he was to bite somebody trespassing in my yard, could I be held responsible?
No fences? I thought that an essential part of the suburban experience was walling off your yard as high as the building code allows and making just enough contact with your neighbors to confirm that you’re living in the wrong suburb.
If I was on a public Virginia sidewalk with my non-violent dog—we’ll call him Frothymouth Chompyface—I’d generally have a duty of ordinary care to make sure he doesn’t bite someone. So, if Frothymouth Chompyface has never bitten anyone before or otherwise shown the propensity to do so, and then bites off the lips (gross) of a nice old lady leaning down to give him a kiss (just as gross), I may very well not be held liable.
After this first bite, though, I am on notice that Frothymouth Chompyface has the propensity for violence. This is called the “one bite” (or “one free bite”) rule. It’s observed in a minority of U.S. states, including Virginia, and dates way back to British common law, before the British started going and colonizing everything with a pulse. Under the “one bite” rule, after that first act of aggression, I’m held strictly liable for any further attacks by Frothymouth Chompyface, regardless of the precautions I take. Note that the “one bite” rule is loosely named—there are a bunch of other factors that can demonstrate whether a dog has a propensity to be aggressive. Many view the rule as way too lenient, considering that dog attacks on people and other animals can be serious, traumatic, and sometimes fatal.
This would also apply on my private property. If an unprovoked Frothymouth Chompyface—in a parallel dimension where he did not bite the lips off of an old lady making advances—chomps down on my Aunt Catarina’s kneecap as she walks into our annual family BBQ with her mystery dip, well, the “one bite” rule may very well apply.
But we’re not done: What you’re contemplating brings in another legal dimension. We’re talking about people who are not expressly invited onto the property, and we might be able to apply a different standard.
Under civil case law in Virginia, “trespassing” has a pretty low bar—it really just requires stepping onto someone else’s property without the owner’s permission. So, does a dog owner have a lower duty of care to a trespasser than an invited guest? Yes, indeed. A trespasser can only recover against an owner for intentional or willful harm. So, if Frothymouth Chompyface—a historically non-violent dog—were to run up and bite a trespasser, the standard is lower than if he’d waylaid Aunt Catarina.
Oh, man. I forgot something. These aren’t everyday sod-trodding trespassers. These are “neighborhood kids,” the bane of civil tort cases since the beginning of time. William Prosser, the man who literally wrote the book on tort law, said it best in 1959:
Children, as is well known to anyone who has ever been a child, are by nature unreliable and irresponsible people, who are quite likely to do almost anything. In particular, they have a deplorable tendency to stray upon land which does not belong to them, and to meddle with what they find there.
In torts, trespassing kids have gotten their limbs mangled in train turntables, drowned in murky water, been strangled by stray ropes, disappeared via large holes in the ground, and suffered lacerations at the hands of rusty sheet metal. It’s like a never-ending Edward Gorey book. Much of this relates to a concept known as “attractive nuisance,” meaning that there’s a man-made construction on the land (say, an empty warehouse) that’s beckoning children to come onto the land and hurt themselves (say, by throwing rocks at windows and getting blinded by shards of glass dropping down). This theory implicitly says that children can’t be with their parents all the time, so if they’re on private property alone, it’s the property owner who’s in the best position to keep the children not dead. “In Virginia, this is sometimes called the ‘dangerous instrumentality’ doctrine,” says David DePianto, an assistant professor of law at SMU. “It essentially requires reasonable care where the owner should have known that children are frequently around and the dangerous condition is not readily apparent to children.”
Back to the question. If I were in the same situation, I’d acknowledge that the thing inducing kids to trespass is not an attractive nuisance, like some Rube Goldberg machine comprised of swinging axes, flapping electrical cables, and barrels of acid. It’s a shortcut across my property. But if I know that there are kids using my yard as a shortcut—which, by the way, I do, in this hypothetical—I may have a higher duty under Virginia law toward these kids. And because kids are idiot versions of humans that have very poor judgment, the law may imply an even higher duty, especially when I take into account the fact that kids are imbeciles who may decide to provoke a dog by throwing rocks at it or some other menacing kid stuff that might turn a dog’s chasing-off instincts into biting instincts.
If these were adult trespassers, I personally would not think twice about it and let them fend for themselves on my property. But because these are neighborhood kids—who are the largest class of injury-prone NPCs in our tort-filled RPG world—I’d either make sure my dog is trained to not chase down trespassers or do the appropriate American thing: Build a fence to keep those damn kids OFF MY LAWN.
Ask a Lawyer is a practicing lawyer with over 15 years of broad legal experience. He is part of the team at Unwonk Podcast and can be found on Twitter. Keep in mind that this is general information, and not formal legal advice or legal representation; if you need any of that, you should get it from a lawyer in real life, not an internet column. A legal problem is serious and fact-specific, and you should treat it accordingly. But you have common sense and already knew that.
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