Nebraska Dog Bite Law

§  54-601. Dogs; personal property; owner liable for damages

   Dogs are hereby declared to be personal property for all intents and purposes, and the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (1) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs and (2) to any person, firm, or corporation by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person, firm, or corporation. Such damage may be recovered in any court having jurisdiction of the amount claimed.

HISTORY: Laws 1877, §  1, p. 156; Laws 1899, c. 4, §  1, p. 54; R.S.1913, §  172; C.S.1922, §  169; C.S.1929, §  54-601; R.S.1943, §  54-601; Laws 1947, c. 192, §  1, p. 629; Laws 1961, c. 268, §  1, p. 786; Laws 1992, LB 1011, §  1. 

ANALYSIS

Construction

ANALYSIS

Construction

Purpose

Purpose

Applicability

Applicability

"Chase."

"Chase."

Common law actions

Common law actions

Elements

Elements

Intentional provocation

Intentional provocation

Landlord

Landlord

Negligence

Negligence

Playful and mischievous

Playful and mischievous

"Running at large."

"Running at large."

Strict liability

Strict liability

Traveler on adjacent highway

Traveler on adjacent highway

"Trespasser."

"Trespasser."

Unlawful killing of dog

Unlawful killing of dog

"Worry."

"Worry."

"Wound."

"Wound."

CONSTRUCTION

JUDICIAL DECISIONS

CONSTRUCTION

   This section removes the common law "scienter" requirement so that nontrespassers are no longer required to prove that a dog owner had knowledge of the dog's vicious tendency or that the dog had previously bitten anyone in order to maintain an action against the owner; trespassers, however, are still required to prove the dog owner's knowledge of the animal's propensity for viciousness. Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996).

   This section must be construed strictly because it abrogates a common-law right. Paulsen ex rel. Paulsen v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979); Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996).

PURPOSE

PURPOSE

   The legislature by enacting this section removed the common-law restriction of proving scienter or knowledge of the dangerous propensities of dogs, but only as it applied to the actions specified in the statute. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

   The legislature was fully aware of the need for protection from the intentional, deliberate, and purposeful acts of dogs and as a result restricted this section to those acts manifesting such qualities. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

APPLICABILITY

APPLICABILITY

   Where an action regarding a dog bite was not against the dog owner, but against the owners of the leased property, this section did not apply. McCullough v. Bozarth, 232 Neb. 714, 442 N.W.2d 201 (1989).

"CHASE."

"CHASE."

   The word "chase" is defined variously as "to follow quickly or persistently in order to catch or harm" and "to make run away; drive" or "to go in pursuit." Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

COMMON LAW ACTIONS

COMMON LAW ACTIONS

   This section does not abrogate the common law tort action for injuries caused by dogbites. Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996).

ELEMENTS

ELEMENTS

   Evidence showing that the defendants' dog first chased and then collided with the plaintiff's motorcycle, causing the motorcycle to tip over and injure the plaintiff, was sufficient to support summary judgment on plaintiff's strict liability claim. Johnson v. Lindley, 41 F. Supp. 2d 1021 (D. Neb. 1999).

INTENTIONAL PROVOCATION

INTENTIONAL PROVOCATION

   This section creates a cause of action based upon strict liability on the part of a dog owner; however, the injured person will be barred from recovering if he intentionally provoked the animal and thereby caused it to attack him. Whether such provocation was intentional and knowing is a question of fact to be determined by the jury. Paulsen ex rel. Paulsen v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979).

LANDLORD

LANDLORD

   A landlord is liable for injuries caused by the attack of a tenant's dog only where the landlord had actual knowledge of the dangerous propensities of the dog and where the landlord, having that knowledge, nevertheless leased the premises to the dog's owner or, by the terms of the lease, had the power to control the harboring of a dog by the tenant and neglected to exercise that power. McCullough v. Bozarth, 232 Neb. 714, 442 N.W.2d 201 (1989).

NEGLIGENCE

NEGLIGENCE

   Whatever liability may attach to the owner of dogs, contributing to the injury of the stock, is in the nature of negligence in allowing his dogs to escape from his control; for if the dog is under the control of its owner when doing the act, it is then the act of the owner, and not of the dog. Cook v. Pickrel, 20 Neb. 433, 30 N.W. 421 (1886).

PLAYFUL AND MISCHIEVOUS

PLAYFUL AND MISCHIEVOUS

   In response to a summary judgment motion, the owners' unsubstantiated assertion that their dog was behaving in a "playful and mischievous" manner when it chased and then collided with the plaintiff's motorcycle was insufficient to raise the issue as an affirmative defense in a summary judgment proceeding. Johnson v. Lindley, 41 F. Supp. 2d 1021 (D. Neb. 1999).

   When the words "killing," "wounding," "worrying," or "chasing," are read together, they exclude playful and mischievous acts of dogs. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975); Holden ex rel. Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993).

   Where the plaintiff's injury was caused by the playful and mischievous act of defendant's dog, the injury was not within the scope of protection afforded by this section. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

"RUNNING AT LARGE."

"RUNNING AT LARGE."

   A dog is not running at large when he is within calling distance and sight of the owner's family and under their control. Brown v. Graham, 80 Neb. 281, 114 N.W. 153 (1907).

STRICT LIABILITY

STRICT LIABILITY

   An owner may be strictly liable for injuries inflicted by his dog without any proof that the owner knew of the dog's dangerous propensities. Holden ex rel. Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993).

   Dog owners are statutorily liable for any and all damage without proof of scienter or knowledge of dangerous propensities of their dog for biting and by reason of such dog or dogs killing, wounding, worrying, or chasing domestic animals and persons. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

TRAVELER ON ADJACENT HIGHWAY

TRAVELER ON ADJACENT HIGHWAY

   The owner of a dog, known by him to have vicious and mischievous propensities, owes a legal duty to protect from injury a traveler passing along the highway adjacent to his premises. Netusil v. Novak, 122 Neb. 749, 241 N.W. 531 (1932).

   The owner of a dog known by him to have vicious propensities was held liable to a traveler passing along highway for shock causing nervous prostration where the dog growled and bared teeth menacingly without leaving the owner's premises. Netusil v. Novak, 120 Neb. 751, 235 N.W. 335 (1931), modified on other grounds, Paulsen v. Courtney, 202 Neb. 791, 277 N.W. 233 (1979).

"TRESPASSER."

"TRESPASSER."

   A trespasser is a person who enters or remains upon premises in possession of another without the express or implied consent of the possessor. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

   A person can trespass on another's property by simply extending his or her arm over the boundary fence. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

   In making a determination as to whether a child was capable of the necessary intent to be classed as a trespasser, the standard of conduct to be used is that of a reasonable person of like age, intelligence, and experience under the circumstances. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

   The word "trespasser," as used in this section, must be construed strictly. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

   The trial court was in error in holding as a matter of law that a child was not a trespasser into the defendant's dog's kennel and that the defendant was liable for the child's dog bite injuries. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

UNLAWFUL KILLING OF DOG

UNLAWFUL KILLING OF DOG

   No person has a right to kill a dog for past and finished misconduct of the dog so killed. Brown v. Graham, 80 Neb. 281, 114 N.W. 153 (1907).

   A dog has a money value, which the owner may recover from one who wrongfully and unlawfully kills his dog. Nehr v. State, 35 Neb. 638, 53 N.W. 589 (1892).

"WORRY."

"WORRY."

   The word "worry" means "to treat roughly as with continual biting" or "to bite or tear with the teeth." Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

"WOUND."

"WOUND."

   The word "wound" is defined as "an injury of a person or animal in which the skin or other membrane is broken, as by violence or surgery." Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

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