Contributory Negligence Defined
Waynesboro, VA - In Virginia, every dog gets one free bite, even if the first bite severely injures or kills a person. Furthermore, due to a statute called, contributory negligence, if a person is even 1% percent responsible for an accident, they are entitled to no compensation at all.
After a Waynesboro boy was recently mauled by a dog, his mother, Lori Tinsley, expected police to take action. But because the dog was "on-property," and no previous complaints had been filed against it, Virginia’s one-bite rule -- which protects dogs and their owners from prosecution for a first-time attack -- applied. The dismal law is best described by attorney Kenneth Phillips:
"It gives every dog a free bite. If you own three dogs, all three of them can bite somebody. Then you can buy three more dogs, and all three of them can bite three people, and this can go on and on."
A 2-year-old pit bull-Labrador mix named Chopper, tethered to a 50 foot chain in a neighbor’s backyard, knocked Adam to the ground, repeatedly biting his head and face. When his mother got to the scene, she said, "He was completely soaked in blood." Adam was rushed to Augusta Medical Center where he received 14 stitches. He nearly lost one of his eyes.
The one-bite rule, rooted in English Common Law, is an anachronism, said Phillips. Although it has been abolished or modified in most parts of the country, it still applies in 19 states, including Virginia. English judges devised the rule in the 1600s to judge the liability of English villagers at a time when people lived with goats and sheep and ducks in their house. Phillips added:
The one free-bite rule was before pit bulls or other fighting dogs, before insurance and before American concepts of responsibility and human rights were invented. The rule is completely out of touch with reality and fairness and everything else in modern American law.
Police said the one-bite rule wasn’t the only thing preventing them from prosecuting. Because the dog was tethered "on-property," the attack would have to have been unprovoked for them to press charges. Renee Audette, Chopper’s owner, said she had warned Adam Tinsley from playing in her backyard. She also said the dog was eating when Adam approached it.
Under another age-old Virginia rule, the dog owner's assertion could be sufficient to void any claim to damages Adam or his family might have. According to the statute, called contributory negligence, if a person is even 1% percent responsible for an accident, they are entitled to no compensation at all. That rule only applies in three other states, according to Phillips.
Phillips said the two rules together make Virginia one of the toughest places in America to claim damages from a dog bite. As a result, he generally avoids cases in the state. "The one-bite rule is a huge barrier because you have to somehow prove what’s in the mind of the dog owner," he said. "But it’s really easy to prove that a victim’s conduct is 1% percent responsible.
Contributory negligence states:
Alabama, Maryland, North Carolina, Virginia and the District of Columbia.
One free-bite states:
Alaska, Arkansas, Hawaii, Idaho, Kansas, Maryland, Mississippi, Missouri, Nevada, New Mexico, North Carolina, North Dakota, Oregon, South Dakota, Texas, Vermont, Virginia, Wyoming
DogBiteLaw.com - Kenneth Phillips
View Kenneth Phillip's website for additional details on state dog laws.
‘Contributory negligence,’ applicable to children? Virginia is writing the movie sequel for ‘Back To The Future.’ It’s called, ‘Forward To The Past.’ Attorney Kenneth Phillips gets two thumbs up for best use of the word, “anachronism.” I had to look it up… I would have gone with arcane. (Different meanings but both apply!)
The victim’s mother selected “archaic,” also correct, in the comment section as she shed more light on the facts:
“What the article FAILED to mention is that (1) my son played there in their backyard with thier son for the last 8 months!! He KNEW the family and the dog. (2) My son was SENT into the backyard BY THE OWNER to get a lawnmower!!! He was attacked by this animal WITHOUT provocation! The owners have yet to call and apologize nor have they bothered to check on how my son is.”
That is a different picture. What isn’t different in this story is the lack of apology and indifference towards the victim.
Good luck to ‘Chopper.’ With Virginia’s one free bite rule, Chopper has a chance to evaluate his performance and improve his skills. Maybe next time he can score a kill on some kid, maybe even on one of his owner’s kids.
This 16th century blindspot in the law needs to go away.