Recovering Noneconomic Damages in a Dog Bite Case in Oregon
A recent case I had involved a client that was attacked by a dog on a public sidewalk. He was walking his own dog at the time when another dog suddenly rushed him, knocked him down and began biting his arms and legs. A question that soon came up for me was how do I recover damages for the pain and suffering he went through in the attack? My client received minimal medical treatment as the only injuries were lacerations so merely getting a $1,000 or so for his medical bills didn't seem like fair compensation for the ordeal he went through.
In many states, (California for example) an owner of a dog is strictly liable for economic and noneconomic damages when the dog injures another person. But Oregon subscribes to the "one-bite rule" when it comes to noneconomic damages which means that the owner of the dog must have prior knowledge of the dog's propensity to attack. So if you own a dog that all of a sudden goes nuts and attacks someone when it's never done so before, you are not liable for noneconomic damages. However, under ORS 31.360, you would be strictly liable for the economic damages the dog caused.
After doing some research (this article by attorney Bradley Thayler was particularly helpful) I pursued a negligence per se claim based on Clackamas County's animal control laws. Under Rule 5.01.040, it is unlawful in Clackamas County to allow a dog to become a public nuisance. The code defines a public nuisance as any dog that bites another person or is a "dog at large." A dog at large is further defined as a dog that is "off or outside the dog owner’s property and not under the immediate control of a person." Cla. Cty. Code 5.01.020(9).
The case ultimately went to arbitration and the defendant admitted his dog was off of his property but he claimed the dog never bit, growled or even barked(!) at another person. But none of this mattered - I didn't need to prove any prior knowledge on the part of the defendant that he knew the dog was a danger. Clackamas county's dog control laws made him strictly liable for my client's noneconomic damages.