Dog Daze

Originally appeared in the May 1998 issue of the ABA Journal.

Harmless Error - A Truly Minority View on the Law

Dog Daze

BY ANDREW J. McCLURG

Some people believe the animal rights movement is of recent origin, but the “one free bite” rule of tort law, which has long granted every dog the inalienable right to sink his teeth into human flesh at least once, proves this is not so.

Recently, the one free bite rule has been criticized for discriminating against humans, many of whom pay dearly for their bites. (If you think I would stoop so low here as to mention MARV ALBERT!!! or MIKE TYSON!!! just to get a cheap laugh, I am really hurt.)

The one free bite rule is actually a greatly misunderstood creature (much like Marv and Mike). A refresher course on this important doctrine is in order. First, beware that bites are not always “free” under the rule. Unscrupulous canines have been known to bill unwitting bitees for labor costs after the attack.

Even more disturbing, undercover K-9 agents in L.A. recently broke up a fraudulent mastication ring run by a gang of vicious Dobermans. According to a spokesmutt, the dogs were duping consumers with offers of “free bites at the apple,” failing to disclose that the gratuitous chomps were limited to “Adam’s apples.”

Most importantly, dog owners need to be aware that not all bites are covered by the rule. Here is the actual rule: A dog owner is liable for a bite only if he knew or had reason to know of the animal’s dangerous propensities. Test your understanding of the principle by solving this thorny multiple choice question:

Vic is the owner of Froo-Froo, a docile poodle who devoted all 72 dog-years of her life to chewing on a tennis ball and rolling over on command until she met Inga, an activist rottweiler down the street. After that, Froo-Froo’s personality changed dramatically.

The tennis ball now sits on the porch, in a puddle of disgusting green slime, while Froo-Froo stays holed up in her doghouse waiting for UPS deliveries that arrive at odd hours. Strange noises emanate from the doghouse around the clock: grinding, clanking, banging and what sounds curiously like snarling to the Curtis Mayfield tune “Superfly.” But whenever Vic goes to investigate, Froo-Froo pretends she’s not home and Vic is left to clean up the empty whiskey bottles piled outside.

One day a mysterious note appears in Vic’s mailbox, composed of letters cut (crudely, as if by paws) from a magazine: “HeLLo, Mr. ViC. Can U spell NEWTuR?”

The next morning, when Vic calls Froo-Froo out for breakfast she springs from the doghouse sporting spiked body armor and titanium fang implants. At that moment, the mailman arrives, pats Froo-Froo on the head cheerfully and says, “Roll over, pooch.”

In an action by the mailman’s survivors, Vic will:

(A) Win, if the jurisdiction adopts the new “one thousand free bites” rule.

(B) Lose, because Vic had reason to know of Froo-Froo’s dangerous propensities.

(C) Win, if Froo-Froo can intimidate the jury.

(D) Lose, because there’s no such thing as a free bite.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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