Dog Bites: What is the liability in Texas when dogs attack?

Posted by Tab Lawhorn | Nov 12, 2021 | 0 Comments

Look, I am going to get this out first right now:  I love dogs.  The two I have are family.  Most of the time a dog that bites is just being a dog and it is not the dogs fault.  That said, it is often the owner that is the problem.  That's where I come in.

This is LuLu. She bit the shit out of me the other day.

The other day, my dog LuLu bit the shit out of me.  Right on my hand.  She drew a little, tiny, bit of blood this time.  I would love to say it was the first time but she has done it before.  Is she aggressive?  Hell yes she is.  Highly.  She is aggressive to other dogs and humans and birds, and things on the t.v., the ceiling fan sometimes and the sound of the shower.  My neighbors have affectionally nicknamed her “switchblade” as they have walked past our house and felt the cold, hundred yard gaze of an animal that's leg starts to shake in anticipation of administering certain death.  I basically have to keep her contained in the house, and even then, in certain areas.  “Are you worried about her being around your 5 year old son?”  Of course.  She has bit the shit out of him too.  Right on the leg.  It didn't do much but it certainly kept him from trying to tackle her.  Oh, I should mention she is a Pekingese.  About 10 lbs of hate wrapped up in a delightful, aristocratic puff ball.  Also, every time she has bit me, it has been a warning shot.  And I was taking something from her, usually food she has stolen from the pantry or from the table.  

My point is, that LuLu has some flaws, but she is not mean spirited.  She probably has attacked me, at most, I would say a dozen times in the last few months.  Does that mean she is a vicious animal?  Probably.  But her abuse and contempt for me and my family has created a bond so strong, that, and I mean this, I would commit felonies to keep someone from hurting her.  She is the best dog I have ever had full stop.  If I could clone her I would.

But what if LuLu bit a guest that came over to my house?  Would I be liable?  I would like to think not because I have never seen Lu Lu bite someone or something that didn't fully deserve it in some way.  But that isn't always the case, and it certainly isn't the law.

1:  Texas and the "One Bite Rule".

Texas is unique in that it does not have a civil statute that specifically lays out a dog owner's civil liability for injuries or damages caused by their dog's behavior.  And when we I mention injuries, I'm not only talking about a bite.  I have had cases in the past where a dog attacked a person by knocking them to the ground, shattering their leg.  I have two past cases where a dog knocked a rider off their bicycle and caused significant injuries.

In 1974, the Texas Supreme Court issued an opinion that is not commonly referred to as the "one bite rule".  Essentially, a owner that does not have any notice that their dog would bite anyone has a defense if one day that dog bites someone.  But that defense is only available once.  After the owner is made aware of their dog biting someone, just once, they can be liable if that dog bites someone again due to the owner's negligence.

All of this means that in a typical Texas dog bite claim, the injured person usually must show that:

  • the dog's owner knew that the dog had acted aggressively or had bitten someone in the past, and/or
  • the dog's owner negligently failed to use reasonable care to control the dog or prevent the bite, and as a result, the injured person was bitten.

2:  Facing criminal charges from a dog bite incident.

In certain dog bite cases, the animal's owner could face criminal charges as well as civil liability.  Texas Health and Safety Code 822.005 lays out the elements for a felony offense if: 

  • the owner "with criminal negligence" fails to secure the dog, and the dog attacks someone, unprovoked, at a location away from the owner's property, or
  • the owner knows the animal is a "dangerous dog" according to Texas law, and the dog attacks someone, unprovoked, at a location other than a secure enclosure in which the dog is restrained in accordance with Texas law, and
  • either of these situations causes serious bodily injury or death.

3:  Do I have any defenses to a dog bite claim?

In response to a dog bite lawsuit brought in the state's courts, a dog owner in Texas might, among other potential defenses:

  • claim lack of knowledge of the dog's dangerous propensities, or
  • allege that the person who was bitten (or otherwise injured) was trespassing at the time of the incident.

Because most Texas dog bite claims require the injured person to show that the owner knew the dog was aggressive, evidence that the owner had no knowledge of (and had no reason to suspect) the dog's potential viciousness might work as a defense to a dog bite claim, especially where the owner was not otherwise acting negligently in controlling the dog.

Further, if the injured person was trespassing on the dog owner's property when the bite occurred, the owner could successfully argue that the person who was bitten bears some or all of the fault for what happened. 

As for me, I am probably not going to have any of these defenses when it comes to LuLu.  Hopefully though, she will temper her thirst for flesh and bone.  She really is a good dog.

About the Author

Tab Lawhorn

Attorney, Tyler Office Tab E. Lawhorn is a principal partner at Lawhorn & Malouf, PLLC in Tyler, Texas. Mr. Lawhorn represents clients in Tyler and throughout Smith County who are victims of a personal injury caused by negligence. He regularly handles matters involving car wrecks, trucking accidents, wrongful death and premises liability.


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