The five classes of dog bite victims in Colorado

Colorado’s dog bite statute, Col. Rev. Stats. sec. 13-21-124 (Civil actions against dog owners), governs dog bites that happened on or after April 21, 2004. It is among the most unnecessarily complicated and unfair dog bite statutes in the USA. This statute and the one that puts a “cap” or upper limit on non-economic damages operate together to create five classes of dog bite victims. Each class is treated differently, either as to what they have to prove, or how much money they can recover. The differences can be drastic. The complexity of this scheme necessitates retaining a lawyer in every case where the bite broke the victim’s skin.

The first class of victim is one who fits within an exception to section 13-21-124. The exceptions include anyone who was “unlawfully on public or private property,” or was on the dog owner’s property if it is “clearly and conspicuously marked with one or more posted signs stating ‘no trespassing’ or ‘beware of dog,’” or was “knowingly provoking the dog,” or was performing the duties of a veterinary healthcare worker, dog groomer, humane agency staff person, professional dog handler, trainer, or dog show judge. A victim in this class cannot recover under the statute or any other legal cause of action.

The second class of victim is the one who neither suffered serious bodily injury nor can prove the requirements of the one-bite rule. These victims cannot recover under the statute, but are free to do so under another cause of action, such as negligence.

The third class of victim is the one who suffers “serious bodily injury.” This was the victim whose plight the statute was intended to improve. The statute imposes strict liability only in cases where the victim suffers a “serious bodily injury.” In other cases, Colorado is a “one-bite” state. (To learn the requirements for liability in a “one-bite” state, see one-Bite Rule.)

Section 18-1-901(3)(p) defines “serious bodily injury” as follows:

18-1-901(3)(p): “Serious bodily injury” means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.

However, the victim who suffers serious bodily injury is not entitled to full compensation under section 13-21-124. The dog bite statute limits the victim’s remedy to “economic damages.” This means that a dog owner is strictly liable only for “economic damages” unless the seriously injured person can prove the requirements for liability under the “one-bite rule.” In other words, strict liability is limited to economic damages.

The term “economic damages” is not defined in the dog bite statute or any other statute. However, its meaning can be deduced from the definition of “noneconomic loss” that is provided in section13-21-102.5:

13-21-102.5 (2)(b) “Noneconomic loss or injury” means nonpecuniary harm for which damages are recoverable by the person suffering the direct or primary loss or injury, including pain and suffering, inconvenience, emotional stress, and impairment of the quality of life. “Noneconomic loss or injury” includes a damage recovery for nonpecuniary harm for actions brought under section 13-21-201 or 13-21-202.

Because “noneconomic loss” includes pain and suffering, inconvenience, emotional stress, and impairment of the quality of life, it stands to reason that the term “economic loss” includes everything else, such as past medical bills, future medical bills, past psychological counseling, future psychological counseling, past loss of income, and loss of earning power as a result of disability or disfigurement.

Therefore, a victim who suffers “serious bodily injury” but cannot prove the requirements of liability under the “one-bite rule” can nevertheless recover “economic damages” consisting of all actual costs of treatment, loss of income, and loss of earning power as a result of disability or disfigurement.

The fourth class of victim includes any person, regardless of his degree of injury, who can prove the elements required by the “one-bite rule” or any other cause of action. If these elements can be proved, then the victim of serious bodily injury or lesser injury can receive not only economic damages but also non-economic damages.

However, while economic damages are not limited in amount, the non-economic damages are limited in most cases. Section 13-21-102.5 limits to “$250,000″ the amount of “noneconomic loss or injury” that an injured person can recover. As of Summer 2006, the $250,000 “cap on damages” had risen to $350,000.

The fifth class of victim is the seriously injured one who can satisfy the requirements of the “one-bite rule” or another cause of action, and who also suffered from physical impairment or disfigurement. The “cap” on economic damages does not apply to compensation for physical impairment or disfigurement. In other words, both the economic damages and the non-economic damages are unlimited if the victim suffers physical impairment or disfigurement.

Therefore, Colorado dog bite law creates five classes of dog bite victims:

• The victim who fits within an exception to the dog bite statute cannot recover anything under the dog bite statute or any other cause of action.

• The victim who did not suffer serious bodily injury and cannot prove the requirements of the one-bite rule cannot recover anything under the dog bite statute, but may still recover if he can prove the elements of another cause of action.

• The victim who suffers “serious bodily injury” can always recover unlimited economic damages, even if the dog never bit before and the dog owner did not do anything “wrong.” However, the dog owner’s liability is limited to the economic damages — not pain and suffering.

• The victim who can prove the requirements of the “one-bite rule” or another cause of action can recover unlimited economic damages plus non-economic damages, but the non-economic damages cannot exceed the “cap” which was $350,000 as of Summer 2006.

• The victim who can prove the requirements of the “one-bite rule” or another cause of action, and who suffered from physical impairment or disfigurement, can recover unlimited economic damages plus unlimited non-economic damages.

Here is another way of expressing the Colorado scheme for compensating dog bite victims:

• If you fit into an exception described by the dog bite statute, you cannot recover anything at all.

• If you did not suffer serious bodily injury and cannot prove the requirements of the one-bite rule or any other cause of action, you are entitled to recover nothing from the dog owner.

• If you suffer serious bodily injury, you are entitled to recover economic damages, even if you cannot prove the requirements of the one-bite rule.

• If you suffer any degree of bodily injury and can prove the requirements of either the one-bite rule or any other cause of action, you are entitled to recover unlimited economic damages but only limited non-economic damages.

• If you suffer serious bodily injury and can prove the requirements of either the one-bite rule or another cause of action, you are entitled to recover unlimited economic damages and unlimited non-economic damages.

Proving a dangerous propensity under Colorado law

It is necessary to prove the existence of a dangerous propensity under Colorado law when the victim cannot use the dog bite statute, and cannot prove the elements of other causes of action, such as negligence or negligence per se. This is because of the severe limitations of the Colorado dog bite statute, which has kept the “one-bite rule” alive in this state.

The “one-bite rule” requires the dog bite victim to prove that the dog had the dangerous propensity to bite, and the owner knew it before the victim was bitten. (See generally, The One-Bite Rule.) Because “dangerous propensity” is not defined by a statute, one must look to the Colorado cases to determine exactly what needs to be proved.

The following cases were decided before the Colorado strict liability statute was passed in 2004. Therefore you must keep in mind that there is statutory strict liability in cases of serious bodily injury in addition to the grounds for liability established in the cases discussed below.

In Barger et al. v. Jimerson et al. (1954) 130 Colo. 459, 276 P.2d 744, the Colorado Supreme Court held that a dog owner who is free of negligence shall nevertheless be liable for injuries and losses resulting from a dog bite, if the owner knew or should have known that the dog was dangerous prior to attack.

The original complaint in Barger stated that the dog owner (the defendant) “allowed said dog to run at large and loose.” At the beginning of the trial, the victim (the plaintiff) asked that this allegation be stricken from the complaint, but at the end of the trial, asked that the allegation be added again. The Colorado Supreme Court held that it was not necessary to allege or prove that the owner allowed the dog to run at large. The Court stated that there was:

“…little reason to discuss the propriety of this procedure since it is not ultimately important for a determination of the case. It is quite evident that defendant did not at any time carelessly or intentionally allow the dog to run at large. Their liability was in keeping such a dog and they did so at their peril.” (130 Colo. at p. 462.)

The Court also held that the victim proved that the owner knew the dog was dangerous because, among other things, the owner kept it confined:

“There is no evidence in this case that the dog in question had ever bitten anyone before, but its ferocious and violent nature as daily exhibited to many people, especially the neighbors, was such as to put prudent people on guard to prevent a possibility of attack on human beings…. Moreover, the fact that defendants kept the dog confined is persuasive in concluding that they considered it unsafe for the dog to be at large.” (130 Colo. at p. 463.)

In E.P. Swerdfeger v. John L. Krueger, Minor, etc. (1960) 145 Colo. 180, 358 P.2d 479, the Colorado Supreme Court held that a victim who knew that the dog might bite, and had to trespass to encounter the dog, cannot recover for his injuries and losses when he trespasses and is bitten. The Swerdfeger decision adopted the language of the Restatement of the Law — Torts:

“… the possessor [of a dog] is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but nonetheless chooses to encounter it out of recklessness or bravado.” (145 Colo. at pp. 184-5.)

In Reynolds v. Reichwein (1973) 510 P.2d 895, 1973 Colo. App. Lexis 857, the Court of Appeals of Colorado held that the appellate courts will not overturn the trier of fact’s determination that that owner knew his dog was vicious, as long as the determination finds some support in the record. In Reynolds, the dog previously bit a child that provoked it. Despite the provocation, the trial court ruled that the dog was vicious and the owner knew or had notice of the dog’s vicious tendencies. DuBois v. Myers (1984) 684 P.2d 940, Colo. App. Lexis 1067, contains an erroneous statement of the law. It cites Swerdfeger for the proposition that:

“In order to establish that a person who owns or keeps a domestic animal is liable for injuries inflicted by that animal, a plaintiff must prove: (1) that the animal has vicious or dangerous tendencies; (2) that the owner or keeper had knowledge or notice thereof; and (3) that the owner or keeper did not exercise reasonable care to prevent injuries reasonably anticipated to result from such tendencies.” (684 P.2d at p. 942.)

With all due respect to the DuBois court, the third “element” (i.e., pertaining to reasonable care) was specifically repudiated in Barger, and results from a misreading of Swerdfeger and the case it relied upon. Swerdfeger did not hold that a defendant who exercises reasonable care can avoid liability. To the contrary, Swerdfeger specifically relied on the following 3-prong test stated in Melsheimer v. Sullivan, 1 colo. App. 22, 27 P. 17:

“1. That the dog was vicious and in the habit of biting mankind.”2. That the defendant knew it.”3. That he bit and injured the plaintiff without any neglect or fault on his [plaintiff's] part.”

The DuBois court misread the third element described in Melsheimer, which pertains to the plaintiff’s fault, not the defendant’s fault. There is no requirement that the defendant be at fault in any way, because the essence of the case against the defendant is that he knew the dog was dangerous and kept it anyway. In fact, that is the basis of the common law cause of action for scienter. (See The One-Bite Rule.)It is necessary to prove a dangerous propensity only when attempting to base a claim on the “one-bite rule.” A dog owner in Colorado also will be held responsible for (a) his or her negligence (for example, a day care center that permits a pit bull to roam freely among toddlers), (b) for violating a public safety law such as a leash law, prohibition against trespassing by dogs, or prohibition against permitting a dog to run at large, (c) any intentional injury inflicted by using a dog, and (d) any injury inflicted as a result of outrageous conduct. These causes of action are very essential for the recovery of noneconomic damages, such as pain, suffering, and impairment of the quality of life.

The text of the dog bite statute

Here is the text of Colorado’s dog bite statute, Col. Rev. Stats. sec. 13-21-124 (Civil actions against dog owners):

13-21-124. Civil actions against dog owners.

(1) As used in this section, unless the context otherwise requires:

(a) “Bodily injury” means any physical injury that results in severe bruising, muscle tears, or skin lacerations requiring professional medical treatment or any physical injury that requires corrective or cosmetic surgery.

(b) “Dog” means any domesticated animal related to the fox, wolf, coyote, or jackal.

(c) “Dog owner” means a person, firm, corporation, or organization owning, possessing, harboring, keeping, having financial or property interest in, or having control or custody of, a dog.

(d) “Serious bodily injury” has the same meaning as set forth in section 18-1-901 (3) (p), C.R.S.

(2) A person or a personal representative of a person who suffers serious bodily injury or death from being bitten by a dog while lawfully on public or private property shall be entitled to bring a civil action to recover economic damages against the dog owner regardless of the viciousness or dangerous propensities of the dog or the dog owner’s knowledge or lack of knowledge of the dog’s viciousness or dangerous propensities.

(3) In any case described in subsection (2) of this section in which it is alleged and proved that the dog owner had knowledge or notice of the dog’s viciousness or dangerous propensities, the court, upon a motion made by the victim or the personal representative of the victim, may enter an order that the dog be euthanized by a licensed veterinarian or licensed shelter at the expense of the dog owner.

(4) For purposes of this section, a person shall be deemed to be lawfully on public or private property if he or she is in the performance of a duty imposed upon him or her by local, state, or federal laws or regulations or if he or she is on property upon express or implied invitation of the owner of the property or is on his or her own property.

(5) A dog owner shall not be liable to a person who suffers bodily injury, serious bodily injury, or death from being bitten by the dog:

(a) While the person is unlawfully on public or private property;

(b) While the person is on property of the dog owner and the property is clearly and conspicuously marked with one or more posted signs stating “no trespassing” or “beware of dog”;

(c) While the dog is being used by a peace officer or military personnel in the performance of peace officer or military personnel duties;

(d) As a result of the person knowingly provoking the dog;

(e) If the person is a veterinary health care worker, dog groomer, humane agency staff person, professional dog handler, trainer, or dog show judge acting in the performance of his or her respective duties; or

(f) While the dog is working as a hunting dog, herding dog, farm or ranch dog, or predator control dog on the property of or under the control of the dog’s owner.

(6) Nothing in this section shall be construed to:

(a) Affect any other cause of action predicated on other negligence, intentional tort, outrageous conduct, or other theories;

(b) Affect the provisions of any other criminal or civil statute governing the regulation of dogs; or

(c) Abrogate any provision of the “Colorado Governmental Immunity Act”, article 10 of title 24, C.R.S.
History

Source: L. 2004: Entire section added, p. 507, � 1, effective April 21.

Critique of the dog bite statute

Prior to the 2004 amendment to CRS 13-21-124 (the dog bite statute), Colorado was a “one-bite state.” In other words, Colorado adhered to the ancient English doctrine of scienter, which developed in the 1600s when horses, mules, geese, ducks, hogs, chickens and, of course, dogs freely wandered the dirty streets of English towns, making it anomolous, in that barely civilized time, to hold liable the owners of such animals when they did harm. This was centuries before the development of the pit bull and the passage of the first animal cruelty laws; in other words, it was a time when it was not illegal for your dog to wander to another person’s property but also not illegal for that person to beat your dog or even kill it if need be. (For a more detailed discussion, see The One-Bite Rule.)

Colorado dipped a toe into the mainstream of Ameican dog bite law and modern beliefs about the responsibilities that accompany dog ownership when the legislature made dog owners strictly liable for just a small percentage of dog bite incidents (those involving serious bodily injury or death) and just a small portion of the damages (economic damages and nothing for the pain and suffering that a mauled child or adult endures from a vicious dog attack). Colorado therefore remains essentially a “one-bite state,” demanding from its dog owners the level of responsibility appropriate for the citizens of an English town 400 years ago, not modern Americans.

The dog bite statute should be further amended to provide strict liability for all losses and damages when a dog causes injury to a person or domestic animal the first time.

Negligence and negligence per se liability for dog bites

Colorado case law holds that a person who owns, keeps or harbors a dog which causes injury can be held liable under theories of negligence and negligence per se. For more about these legal theories generally, see the discussion in Legal Rights of a Dog Bite Victim.

In Snow v. Birt, 968 P.2d 177 (Colo.App. 10/29/1998), a young girl named Cynthia was visiting her father, who owned a dog. Her father and the dog lived with Cynthia’s grandparents. A week prior to this visit, the dog bit a different child and then, at this visit, the dog bit Cynthia. The grandparents clearly knew about the prior bite because they built a dog run to confine the dog, upon orders of the health department after the first bite.

On Cynthia’s behalf, a claim for compensatory and punitive damages was made against the grandparents. It was alleged that they were liable on the grounds of general negligence and negligence per se based on the violation of a municipal ordinance. The ordinance provided that “[i]t shall be the duty of every owner or keeper of any animal in their possession or control, to exercise reasonable care and to take all necessary steps and precautions to protect other people . . . from injuries or damage which might result from their animal’s behavior.” Another ordinance defined “owner or keeper” to include “any person . . . possessing, harboring, keeping, having an interest in, or having control or custody, either permanently or temporarily, of an animal.”

The grandparents moved for summary judgment, asserting that they owed no legal duty to Cynthia and that any such duty was owed by Cynthia’s father, the dog’s owner and keeper. The trial court granted the motion, but the court of appeals reversed.

The court held first that the grandparents were harborers and/or keepers of the dog, and that the dog was in their control or custody. The court also held that the municipal ordinances imposed a duty of care upon defendants to exercise reasonable care and to take all necessary precautions to protect Cynthia from being injured by the dog. Additionally, the court held that the grandparents owed the little girl a common law duty of care, based on the fact that the they were harborers and/or keepers of the dog, and that the dog was in their control or custody.

This case therefore stands for the proposition that harborers and keepers (as opposed to owners) of a dog may be held liable for injuries it inflicts, founded upon general negligence and negligence per se based on the violation of a municipal ordinance.

It has been specifically held that negligence per se is a proper ground for liability, based on the violation of a statute or ordinance that is intended to prevent harm. Lui v. Barnhart, 987 P.2d 942 (Colo.App. 08/19/1999). As the plaintiff in Lui was driving home at night, his vehicle collided with defendant’s horse. The horse had escaped from its corral and had wandered into the street. A city ordinance required that owners of animals “shall not fail” to keep their animals physically confined or restrained. At trial, based on the ordinance and the horse’s presence in the road, plaintiff requested the trial court to instruct the jury concerning negligence per se, among other things. The trial judge gave the requested instruction, but the jury found no negligence. On appeal, the giving of the instruction was upheld. The court of appeal stated:

Some situations that may not be considered inherently dangerous to others but could pose a risk of danger under certain circumstances may be regulated by statute or ordinance, which, in turn, may be the basis of a negligence per se claim if the statute is violated. In such situations, the statute itself establishes the standard of care and its violation is equivalent to a breach of duty and conclusively establishes that aspect of a plaintiff’s negligence claim.

The wording of the statute or ordinance is critical to proving whether it was violated. In Lui, supra, the horse was wandering loose, the ordinance required that owners of animals “shall not fail” to keep their animals physically confined or restrained, and therefore a violation occured. The result will be the opposite, however, if the ordinance makes it “unlawful for any owner . . . of any dog to allow such dog to run at large.” This was how the ordinance was worded in Downing v. Lillibridge, 566 P.2d 714, 39 Colo. App. 231 (Colo.App. 04/21/1977). The Downing court held that there was no violation because the word “allow” required proof of either negligence or intentional conduct on the part of the defendant:

In construing statutory language similar to that contained in the ordinance above, the overwhelming majority of courts has held that civil liability for injuries caused by an animal running at large cannot be imposed against the owner of the animal absent a showing of negligence or intentional conduct on the part of the owner in permitting the animal to run at large. See, e.g., Santanello v. Cooper, 106 Ariz. 262, 475 P.2d 246 (1970); Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943 (1973); and see generally, 4 Am. Jur. 2d, Animals � 116; Annot, 34 A.L.R.2d 1285. We therefore conclude that the use in the ordinance of the word “allow” evidences a legislative intent to require proof of an owner’s negligence as a predicate to recovery in a civil action.

The availability of negligence per se based on a statutory violation is of great importance in Colorado because this cause of action follows from the type of serious injury that violates section 18″��9″��204 (Unlawful Ownership of Dangerous Dog). Subsection (3)(a) makes it a criminal offense to have a dangerous dog. (“A person commits ownership of a dangerous dog if such person owns, possesses, harbors, keeps, has a financial or property interest in, or has custody or control over a dangerous dog.”) Subsection (2)(b)(I) defines “dangerous dog” as “any dog that … [h]as inflicted bodily or serious bodily injury upon or has caused the death of a person.” There is no requirement of prior knowledge of the dog’s dangerousness.

There are no appellate cases that have construed the meaning of section 18″��9″��204. Where no in-state precedents exist, Colorado courts examine out-of-state cases that construe similarly worded statutes. People v. Julien, 47 P.3d 1194 (Colo. 2002), Air Communications & Satellite Inc. v. EchoStar Corp., 38 P.3d 1246, 1251 (Colo. 2001).

Pennsylvania’s regulation of dangerous dogs rests upon criminal law that, throughout the USA, bears the closest resemblence to Colorado’s section 18″��9″��204. Section 502-A(a)(1) of the Pennsylvania “Dangerous Dog Statute” makes it a crime to keep a dangerous dog, which means a dog that “has done one or more of the following: (i) [i]nflicted severe injury on a human being….” A “severe injury” is “any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery.” (The Dog Law, sec. 102.) In Commonwealth v. Hake 738 A.2nd 46 (Pa. Commw. Ct. 1999) it was held that a single incident of infliction of severe injury imposes criminal liability under the above statute. For more about Pennsylvania’s dog bite law, see Pennsylvania.

On the basis of that violation, dog bite victims have prevailed in making negligence per se claims against dog owners in the State of Pennsylvania, which is a “one-bite state.” The Hake case was well reasoned and should be applied in Colorado to produce the same result.

Landlord liability for dog bites

The Colorado premises liability statute, � 13-21-115, C.R.S. 2004, is a dog bite victim’s only means of recovery in an action against a landlord. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005); Vigil v. Franklin, 103 P.3d 322 (Colo. 2004). In Wilson it was held that a landlord would be liable for the dog’s attack only if he actually knew, prior to entering into the lease, of the danger the dog presented.

Settlement offers and awards of costs

Like a number of other states (including California), Colorado encourages parties to settle lawsuits. Such encouragement is by virtue of a statute that says, essentially, that a party will be regarded as a loser even if he is the winner, if he failed to accept a more advantageous offer of settlement. As the loser, that party will be required to pay everyone’s litigation costs (but not attorney fees).

13-17-202 – Award of actual costs when offer of settlement was made.

(1) (a) Notwithstanding any other statute to the contrary, in any civil action of any nature commenced or appealed in any court of record in this state:

(I) If the plaintiff serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the defendant and the plaintiff recovers a final judgment in excess of the amount offered, then the plaintiff shall be awarded actual costs accruing after the offer of settlement to be paid by the defendant;

(II) If the defendant serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the plaintiff and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff;

(III) If an offer of settlement is not accepted within ten days after service of the offer, the offer shall be deemed rejected, and the party who made the offer is not precluded from making a subsequent offer. Evidence thereof is not admissible except in a proceeding to determine costs.

(IV) If an offer of settlement is accepted within ten days after service of the offer, either party may file the offer, written notice of acceptance, and proof of service with the court, and the clerk shall enter judgment upon the accepted offer of settlement;

(V) An offer of settlement under this section shall remain open for at least ten days from the date of service unless withdrawn by service of withdrawal of the offer of settlement;

(VI) An offer of settlement served at any time ten days or less before the commencement of the trial shall not be subject to this section, and evidence thereof is not admissible for any purpose.

(b) For purposes of this section, “actual costs” shall not include attorney fees.

(2) When comparing the amount of any offer of settlement to the amount of a final judgment actually awarded, any amount of the final judgment representing interest subsequent to the date of the offer in settlement shall not be considered.

(3) When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of settlement, which shall have the same effect as an offer made before trial (except with respect to costs already incurred) if it is served pursuant to subsection (1) of this section.