Published on September 24th, 2014 | by Millennium Magazine Staff0
Survey of South Carolina Dog Bite Law
This article originally appeared in the South Carolina Lawyer and is reprinted with permission from the South Carolina Bar.
Photo by George Fulton
Dog bites are a too common occurrence in this country. The Center for Disease Control reports that 4.5 million dog bites occur in the United States each year and 1 in 5 of these incidents requires medical attention. The CDC also reports that the insurance industry pays more than $1 billion in dog bite claims each year. This article provides a survey of dog bite law in South Carolina so that you can assist your clients involved a dog bite matter.
Prior to McQuaig v. Brown, South Carolina followed the “one free bite rule.” Teresa Lynn McQuaig was two years old when she went with her parents into Brown’s backyard where Brown kept his English Setter. The McQuaigs were there with Brown’s permission to obtain the firewood he had given them. No one heard the dog growl or saw it demonstrate any sign of aggression before the dog bit the child.
The trial court granted the dog owner’s motion for summary judgment due to lack of evidence demonstrating 1) that the dog was of a vicious, aggressive or hostile nature or 2) Brown knew of the dog’s vicious propensities. The Supreme Court affirmed.
What makes McQuaig interesting, however, is Justice Littlejohn’s concurrence. He contended that it was time for South Carolina courts to “review its basic concept of liability as relates to the owners of dogs.” He further stated, “[w]e have the paradoxical situation in which a parent may be liable for damages [i]f his child goes next door and harms a dog, but need not respond in damages if his dog goes next door and harms a child, unless he had bitten before or was known to be of a mischievous nature.” McQuaig was the last case in which the “one free bite” rule prevailed.
Seven years later in Hossenlopp v. Cannon, the Supreme Court adopted a quasi-strict liability rule for dog bites. In this case, Eric Hossenlopp, a four-year-old child, was attacked by Cannon’s dog who charged at him while Eric was in his babysitter’s yard. The child had not provoked the dog at all. Further, Cannon testified that his dog had previously attacked a six-year-old child and that his dog required a chain for restraint. Based on facts establishing the dog’s vicious nature, the Court took the opportunity to change South Carolina dog bite law, stating that because South Carolina dog bite law is of common law origin, it can be changed by common law mandate. Chief Justice Littlejohn pointed to a jury instruction from California that stated the dog owner was liable when his dog bit someone unless the person bitten had provoked the dog. This jury instruction made no provision for whether the dog had shown vicious propensities prior to the incident or whether the owner was aware of the dog’s vicious propensities. Chief Justice Littlejohn also held that all cases previously decided that were inconsistent with this new ruling were overruled. It is important to note that while they concurred with the result of holding Cannon liable for the injuries Hossenlopp suffered, both Justice Gregory and Justice Harwell wrote separately to state that there was sufficient evidence under South Carolina’s existing dog bite law and that Justice Littlejohn’s majority opinion was “a far reaching change in the law.”
One year later, in 1986, the General Assembly enacted S.C. Code Ann. § 47-3-110, which sets forth the liability of the owner or person having a dog in his/her care or keeping:
Whenever any person is bitten or otherwise attacked by a dog while the person is in a public place or is lawfully in a private place, including the property of the owner of the dog or other person having the dog in his care or keeping, the owner of the dog or other person having the dog in his care or keeping is liable for the damages suffered by the person bitten or otherwise attacked …when the person bitten or otherwise attacked is on the property upon the invitation, express or implied, of the owner of the property or of any lawful tenant or resident of the property. If a person provokes a dog into attacking him then the owner of the dog is not liable.
The statute sets forth a quasi-strict liability standard in that the owner does have a defense if the dog bite victim is on his property unlawfully or if the victim provokes an attack. The statute also states that a property owner is also potentially liable if he exercises control over and assumes responsibility for the care and keeping of the dog, even if he is not the dog’s owner.
In Nesbitt v. Lewis, the Court of Appeals held that Gloria Lewis, who owned three chow dogs, and her son Gordon Lewis were liable for injuries sustained by Valerie Nesbitt, who was with her father on the Lewis property while he was mowing the lawn. The Nesbitt court found that Gloria Lewis had control and possession of the dogs and Gordon, who lived with Gloria at the time of the attack, had cared for the dogs. The court also found no evidence to show Valerie had provoked the dogs. The court found that Valerie was at least a licensee on the Lewis premises when she accompanied her father and therefore was on the property lawfully. While the court found that punitive damages were not recoverable under the facts of the particular case, it declined to rule that punitive damages were not recoverable under S.C. Code Ann. § 47-3-110. Nesbitt demonstrated that the appellate courts would uphold the quasi-strict liability statute and that under the facts of the case, if a plaintiff could prove reckless, wanton or willful damages, he could collect punitive damages for injuries related to a dog bite.
In 2008, the S.C. Supreme Court addressed whether a dog owner was liable for injuries caused while his dog was being cared for in a kennel in the case Harris v. Anderson County Sheriff’s Office. In Harris an Anderson County Sheriff’s Deputy boarded his police dog Sleuber with a veterinary clinic in Townville where Harris was employed as a veterinary assistant. Sleuber had a history of several unprovoked attacks, which was known to the sheriff’s office. While at the kennel Sleuber attacked Harris, unprovoked, and severely injured her. Harris brought suit against the sheriff’s office for damages she suffered as a result of the attack.
The trial court reasoned that once the sheriff’s department had surrendered the dog to the kennel, the dog was no longer in its care or keeping and therefore Harris had no claim against it under S.C. Code Ann. § 47-3-110. The trial court reached its conclusion based on the part of the statute that reads, “the owner of the dog or other person having the dog in his care or keeping is liable for the damages suffered by the person bitten or otherwise attacked.” On appeal, the Supreme Court held that the General Assembly had clearly enacted a statute based on strict liability and therefore any interpretation that put a plaintiff in a position of choosing who to sue was not in conformity with the statute. The Court further held that the owner was still liable for the dog, even when the dog was no longer in its control, as being boarded in a kennel. The Court also declined to create an exception, which would preclude a kennel worker from maintaining a claim against a dog owner for injuries sustained while the kennel worker was on duty.
In Harris the Supreme Court took the opportunity to instruct the bench and bar concerning confusion that had arisen over the interpretation of S.C. Code Ann. § 47-3-110. The Court instructed that there was only limited interplay between the statute and common law and the statute did not fully incorporate common law principles of negligence. The Court instructed that the intent of the legislature was to hold the dog owner strictly liable for injuries caused by the dog in an unprovoked attack, regardless of whether the dog was in the owner’s care or keeping at the time of the incident. Regarding claims against a property owner, the standard was whether the dog was in the property owner’s care or keeping. In that scenario, a property owner could be held liable for an unprovoked attack on a victim lawfully on the owner’s property. The property owner could avoid liability only if the property owner could show that the dog was not in the property owner’s care or keeping. As to the dog owner, however, liability could be had for injuries caused in an unprovoked attack by the dog, even when the dog was not in the care of the owner.
Landlord liability for dog bites
There have been occasions in which a landlord has been sued when a dog belonging to a tenant bit someone and caused damages. Whether a landlord is liable depends on where the victim and the dog were at the time of the incident. South Carolina courts have held that a landlord cannot be held liable for dog bites occurring on premises leased by the tenant, but a landlord can be found liable if the dog bite occurs on common areas of the leased property.
A case involving landlord liability for dog bites is Mitchell v. Bazzle. Bazzle was a tenant in a mobile home park in which co-defendant Peebles was the landlord. Jessica Mitchell, age six, was playing in a neighbor’s yard when Bazzle’s dog leapt over the fence and attacked her, injuring her severely. Mitchell argued that Peeples was liable because he knew that Bazzle’s dog was vicious and could have foreseen the dog would injure someone, yet Peebles did not terminate Bazzle’s lease. The only authority Mitchell could cite was the California case of Uccello v. Laudenslayer.
The Court of Appeals in Mitchell found that while a landlord had a common law responsibility to use his land in such a way that did not harm adjacent landowners, there was no precedent for imposing vicarious liability on a landowner for injuries caused by a tenant’s dog. The Court of Appeals found no authority for negligent leasing or entrustment of land that would impose liability on Peebles. The Court of Appeals then held that Peebles could not be held liable for damages done by Bazzle’s dog and his dismissal from the case was affirmed.
Unlike in Mitchell, the South Carolina Residential Tenant Act (RLTA) was in effect when the case of Bruce v. Durney reached the Court of Appeals. Bruce’s daughter Kinsli was visiting the Durneys when she was bitten by the Durneys’ chow dog. Bruce brought the action against the Durneys and against Motsinger, who was the property owner of record. Motsinger was Durney’s father and he allowed them to live on the property though he did not charge the Durneys for rent and had no written lease agreement with them.
In considering Motsinger’s liability, the court cited Mitchell as precedent for the proposition that a landlord is not liable to a third party for damages done by a tenant’s dog. The court also relied on Fair v. United States, in which the S.C. Supreme Court held that the “fit and habitable” provision of the RLTA did not alter the common law rule that a landlord is not liable to a tenant’s invitee for injury caused by a tenant’s dog. Based on these precedents, the court found that a landlord is not liable for injuries caused by an animal kept by a tenant on leased property.
A problem for landlords arises when a dog in a common area of the property attacks and bites someone. In Clea v. Odom, the S.C. Supreme Court addressed the issue of liability when a tenant’s dog kept in a common area bites a child. Shannon, one of the defendants, kept his dog chained to a tree in the common area of the apartment complex where Carter was the landlord. The dog had been chained there for 10 years, and Carter was known from time to time to pet the dog and feed it. Two-year-old Trevan Clea was with his mother visiting a relative when he toddled over to pet the dog and was severely attacked. On investigation it was found that the dog had previously attacked a six-year-old boy. The landlord had threatened to make Shannon get rid of the dog after the first incident, but never followed through.
The Court found that S.C. Code Ann. § 47-3-110 the phrase “or other person having the dog in his care or keeping” imposed liability on a person who acted in a manner that manifested an acceptance of responsibility for the care and keeping of the animal. Because the landlord had exclusive control over the common area where the dog was kept, the Court found there was a genuine issue of material fact as to whether the landlord had the dog in his care or keeping and reversed the trial’s court’s award of summary judgment.
The Court also found that the landlord could be found liable under common law because the attack took place in the common area of the property and because the landlord knew the dog was vicious. The Court found this case distinguishable from previous cases because the attack took place in the common area of the leased property.
As an aside, the Court affirmed the trial court’s finding that the dog was not an attractive nuisance because an attractive nuisance is an artificial condition and the Court found that the presence of a dog on the property did not constitute an artificial condition.
In conclusion, dog owners can be held liable for injuries sustained when their dog bites someone, even if their dog has never bitten someone before. While the statute is referred to as a strict liability statute, it is more accurately a quasi-strict liability statute because it affords two defenses to liability. A dog owner may have the defense that the victim was on the premises unlawfully or that the victim provoked the dog. Those who care for a dog, such as keeping a dog for the neighbors, might find themselves liable because the dog was under their care and keeping. Landlords are not liable for third party damages if a tenant’s dog bites someone on the leased premises. Where a landlord could be found liable is if the dog bites someone in a common area under control of the landlord and the landlord was found to have the dog in its keeping. The important thing to remember is that South Carolina no longer has the “one free bite” rule.
V. Elizabeth Wright practices with Covington Patrick Hagins Stern & Lewis, P.A. in Greenville.
 Center for Disease Control and Prevention, Home & Recreational Safety, www.cdc.gov/HomeandRecreationalSafety/Dog-Bites/index.html (last visited July 8, 2014).
 270 S.C. 512, 242 S.E.2d 688 (1978).
 Id.at 515, 242 S.E.2d 689.
 Id. at 517, 242 S.E.2d 690.
 285 S.C. 367, 329 S.E.2d 438 (1985).
 Id.at 371, 329 S.E.2d 441.
 Id. at 372, 329 S.E.2d 441.
 Id. at 373, 329 S.E.2d 442.
 S.C. CODE ANN. § 47-3-110 (1987 Supp. 2013).
 335 S.C. 441, 517 S.E.2d 11 (Ct. App. 1999).
 381 S.C. 357, 673 S.E.2d 423 (2009).
 S.C. CODE ANN. § 47-3-110 (1987 Supp. 2013).
 381 S.C. at 359, 673 S.E.2d at 424.
 Id.at 364, 673 S.E.2d at 426.
 Id. at 364, 673 S.E.2d at 426-27.
 Id.366,673 S.E.2d at428.
 304 S.C. 402, 404 S.E.2d 910 (Ct. App. 1991).
 118 Cal. Rptr. 741 (Cal Ct. App. 1975).
 304 S.C. 402, 405, 404 S.E.2d 910, 912.
 341 S.C. 563, 534 S.E.2d 720 (Ct. App. 2000).
 Id.at 570, 534 S.E.2d at 724.
 334 S.C. 321, 513 S.E.2d 616 (1999).
 394 S.C. 175, 714 S.E.2d 542 (2011).
 Id.at 180, 714 S.E.2d at 545.
 Id. at 183, 714 S.E.2d at 546-47.
 Id. at 184, 714 S.E.2d at 547.
Information in the article is not to be taken as legal advice.