Although it might seem ridiculous for a burglar bitten by a family dog during a robbery to win a lawsuit against the owner of the house he was robbing, such an outcome is actually possible, if not particularly likely. The law surrounding liability to trespassers for dog bites is somewhat nuanced, and it varies somewhat from jurisdiction to jurisdiction.
Who Counts as a “Trespasser”?
A trespasser is someone who unlawfully enters or remains on the property of another, without an invitation and for his own purposes. Not everyone who comes onto your property without a specific invitation counts as a “trespasser”, however. The following parties, for example, are considered to be authorized to enter your property even without a specific invitation:
- mail carriers
- firefighters
- police officers
- utility workers
- door-to-door sales people (unless you have a “No Soliciting” sign)
- customers (if your property is a business)
- someone chasing their pet who has strayed onto your property
- someone who stops by to ask for directions.
- someone who enters your property to retrieve his own property
Any of these people could become trespassers if they remain on the property after their reason for entering it has expired.
Premises Liability
Premises liability is a legal concept that defines how careful you have to be to avoid liability for an injury that someone on your property suffers (in this case, a dog attack). Property owners owe a certain duty of care to anyone on their property, including invitees such as house guests, licensees such as postal workers, and trespassers such as burglars.
Compared to invitees and licensees, a homeowner owes the lowest duty of care to a trespasser. He does not have to get rid of dangerous conditions (such as a vicious dog) in order to protect a trespasser. He does, however, have a duty to exercise “reasonable care” to prevent harm even to a trespasser.
“Reasonable care” with respect to the risk of an attack by a dog already known by the owner to be prone to aggressive behavior might include a “Beware of Dog” sign and/or a leash if the dog is outside. The specific steps that a homeowner must take in order to exercise “reasonable care” might vary according to, for example, whether the trespasser was a small child or a burglar attempting to rob the home (due to the reasonable fear of harm posed by a burglar).
Strict Liability
Some states, such as California, generally hold a dog owner liable for injuries caused by anyone the dog bites, without even looking into the question of whether or not the owner was at fault. Other states, such as Texas, require the victim to show that the dog owner was negligent (by, for example, failing to take precautions even though he knew from the dog’s previous behavior that it was prone to aggression). Even in strict liability states, however, a trespasser is treated differently – he must usually show that the dog owner was negligent in order for his claim to prevail.
Comparative Fault
A court is likely to find that the dog attack was partly the trespasser’s fault for being on the property unlawfully in the first place. A court might decide, for example, that a burglar was 90 percent at fault for the attack and that the dog owner was 10 percent at fault (for failing to erect a warning sign, for example).
In some states a 90/10 split of responsibility would leave a dog owner with zero liability, while in other states it would leave the dog owner responsible for only 10 percent of the burglar’s damages. One of the reasons for this seemingly absurd result is that a vicious dog owned by a careless homeowner might maul a trespassing child on some future occasion.
Dog bite liability law can get particularly complex when the injured party is a trespasser. Consequently, the services of a skilled local dog bite attorney could prove extremely helpful.