Any person to whom or to whose property, including sheep, lambs, fowl, or other domestic creatures, damage may be occasioned by a dog not owned or kept by such person shall be entitled to recover damages from the person who owns, keeps, or possesses the dog, unless the damage was occasioned to a person who was engaged in the commission of a trespass or other tort. A parent or guardian shall be liable under this section if the owner or keeper of the dog is a minor. 

 

HISTORY: 1851, 1124. CS 133:7. GS 105:7. GL 115:10. PS 118:9. PL 150:23. RL 180:23. RSA 466:19. 1989, 158:1. 1991, 213:1. 1995, 298:11, eff. Jan. 1, 1996. 

 

NOTES:

AMENDMENTS--1995. Substituted "such person" for "him" preceding "shall be", "damages from" for "such damage of" following "recover", "owns, keeps, or possesses the dog" for "owns or keeps the dog, or has it in his possession" preceding "unless the damage" and "a person who" for "him while he" preceding "was engaged" in the first sentence.

 

--1991. Inserted "including sheep, lambs, fowl, or other domestic creatures" following "property".

 

--1989. Added the second sentence. 

 

ANNOTATIONS

1. Common law.

2. Purpose.

3. Construction.

4. Construction with other laws.

5. Basis for liability/-Generally.

6. /-Liability as keeper.

7. /-Liability as person in possession.

8. Defenses/-Exercise of care by owner.

9. /-Contributory negligence.

10. /-Trespass or other tort.

11. Pleadings.

12. Instructions.

 

1. COMMON LAW.

   In an action at common law for injuries caused by a dog, the burden of proof was upon the plaintiff to establish that the owner of the dog knew or had reason to know that it had vicious propensities. Orne v. Roberts (1871) 51 N.H. 110. See also Gagnon v. Frank (1927) 83 N.H. 122, 139 A. 373.

 

2. PURPOSE.

   The purpose for the enactment of this section was to obviate the difficulty of showing the owner's knowledge of the vicious propensities of the dog as required at common law. Allgeyer v. Lincoln (1984) 125 N.H. 503, 484 A.2d 1079.

   The purpose of this section, imposing liability on the keeper of a dog for injuries and property damage caused by it to any person, unless the danger was occasioned while such person was engaged in the commission of a trespass or other tort, is to obviate the difficulty of showing the owner's or keeper's knowledge of the vicious propensities of the dog as required by common law. Wike v. Allison (1964) 105 N.H. 393, 200 A.2d 860.

 

3. CONSTRUCTION.

   Legislature did not intend wording of this section to encompass father's claim for mental and emotional injuries incurred as a result of witnessing defendants' dog attack his daughter. Douglas v. Fulis (1994) 138 N.H. 740, 645 A.2d 76.

   This section is to be given a reasonable interpretation. Gagnon v. Frank (1927) 83 N.H. 122, 139 A. 373.

   One hired to care for the dog may not recover under this section. Gagnon v. Frank (1927) 83 N.H. 122, 139 A. 373.

 

4. CONSTRUCTION WITH OTHER LAWS.

   This section and RSA 466:20 were not intended to cover a situation where no vicious or mischievous acts by a dog were alleged. Noyes v. Labrecque (1965) 106 N.H. 357, 211 A.2d 421.

 

5. BASIS FOR LIABILITY--GENERALLY.

   Trial court erred in requiring plaintiffs to elect between their common law negligence claims and their claim under the dog bite statute. Hewes v. Roby (1992) 135 N.H. 476, 606 A.2d 810.

   This section makes owners or keepers of dogs strictly liable for harm caused by their dogs' vicious or mischievous acts. All geyer v. Lincoln (1984) 125 N.H. 503, 484 A.2d 1079.

   A person injured by a dog may recover damages from either the owner or the keeper, but not from both. Gagnon v. Martin (1976) 116 N.H. 336, 358 A.2d 406.

 

6. --LIABILITY AS KEEPER.

   Where the evidence showed that a husband had sole care and control of a dog and that his wife had nothing to do with the dog, the wife was not chargeable as its keeper. Janus v. Akstin (1941) 91 N.H. 373, 20 A.2d 552.

   The word "kept" implies more than a mere harboring of the animal for a limited purpose or time, and a person becomes liable as a "keeper" only when, either with or without the owner's permission, he undertakes to manage, control or care for a dog in the manner of dog owners in general; it is not enough that he permits the casual presence of a dog upon his premises and merely feeds or shelters it. Raymond v. Bujold (1938) 89 N.H. 380, 199 A. 91.

   One who retains another's lost dog in his possession for only a limited time and only for the purpose of delivering it to its owner upon demand is not its keeper within this section. Raymond v. Bujold (1938) 89 N.H. 380, 199 A. 91.

 

7. --LIABILITY AS PERSON IN POSSESSION.

   The fact that a head of a family merely permitted a dog to remain in his household did not warrant a finding that he was "in possession," so as to be liable under this section for injuries caused by it, where the actual ownership, care, custody and control of the dog was in an adult member of the family. Glidden v. Szybiak (1949) 95 N.H. 318, 63 A.2d 233.

   A finding that a wife had her husband's dog in her possession was not warranted where the husband testified that his wife did not like the dog and that the husband when there, and his boy when the husband was away, took care of the dog. Janus v. Akstin (1941) 91 N.H. 373, 20 A.2d 552.

 

8. DEFENSES--EXERCISE OF CARE BY OWNER.

   In actions under this section, no question of care or negligence on the part of the dog owner is involved; t he utmost vigilance to prevent his dog from doing an injury affords him no defense. Chickering v. Lord (1894) 67 N.H. 555, 32 A. 773.

 

9. --CONTRIBUTORY NEGLIGENCE.

   Comparative fault statute, RSA 507:7-d, applies to cases brought under the dog owners liability statute. Bohan v. Ritzo (1996) 141 N.H. 210, 679 A.2d 597.

   Where the events which gave rise to plaintiffs' action occurred before the effective date of statute which abolished defense of contributory negligence as it applied to statutory liability, defense of contributory negligence applied to their claim under the dog bite statute and the defense of comparative negligence applied to their negligence claim. Hewes v. Roby (1992) 135 N.H. 476, 606 A.2d 810.

   This section does not confer a right of action to a person whose injury is due wholly or in part to his own negligence. Wike v. Allison (1964) 105 N.H. 393, 200 A.2d 860.

   The doctrine of contributory negligence applies in an action to enforce the statutory liability. Quimby v. Woodbury (1885) 63 N.H. 370.

 

10. --TRESPASS OR OTHER TORT.

   In an action to recover for personal injuries sustained as the result of being bitten by dogs in the possession of defendant, plaintiff's entry on defendant's land on lawful business at a reasonable hour of the day without being warned or asked to leave and without disturbing or damaging defendant's property did not constitute a "trespass or other tort" within the meaning of this section. Frenette v. Gillis (1965) 106 N.H. 210, 208 A.2d 453.

   In an action under this section to recover for a dog bite received by a child, the fact that the child engaged in play with the dog and pulled its ears did not constitute a trespass which would prevent recovery where there was no evidence that the dog was in any way injured thereby. Glidden v. Szybiak (1949) 95 N.H. 318, 63 A.2d 233.

 

11. PLEADINGS.

   Where defendants' dog ran toward plaintiff's leg as if to bite him, resulting in plaintiff's reacting instinctively, falling, and badly injuring himself, plaintiff sufficiently alleged mischievousness on part of dog, and an actual bite or other direct physical contact was not required. Bohan v. Ritzo (1996) 141 N.H. 210, 679 A.2d 597.

   The declaration in an action to recover for injury done by a dog is not defective because it fails to formally allege plaintiff's freedom from fault. Smith v. Hallahan (1910) 75 N.H. 534, 78 A. 122.

 

12. INSTRUCTIONS.

   An instruction that "if the head of a family, having the possession and control of a house or premises, suffer or permit a dog to be kept on the premises in the way such domestic animals are usually kept, . . . such head of a family may be regarded as the keeper of a dog within the meaning of the statute" is sufficiently favorable to the defendant. Cummings v. Riley (1872) 52 N.H. 368.

 

CITED. Cited in East Kingston v. Towle (1868) 48 N.H. 57; McIntire v. Plaisted (1876) 57 N.H. 606; Whitaker v. Warren (1880) 60 N.H. 20; Chickering v. Lord (1894) 67 N.H. 555, 32 A. 773; Unity v. Pike (1894) 68 N.H. 71, 44 A. 78; Colby v. Lee (1928) 83 N.H. 303, 142 A. 115; Richards v. Leppard (1978) 118 N.H. 666, 392 A.2d 588; Bagley v. Controlled Environment Corp. (1986) 127 N.H. 556, 503 A.2d 823.

 

LIBRARY REFERENCES

 

NEW HAMPSHIRE PRACTICE

   8 N.H.P. Personal Injury § §  97, 111, 162.

 

ALR

   Liability for injuries inflicted by dog on public officer or employee. 74 ALR4th 1120.

   Liability for injury inflicted by horse, dog, or other domestic animal exhibited at show. 68 ALR5th 599.

   Liability of dog owner for injuries sustained by person frightened by dog. 30 ALR4th 986.

   Liability of owner of dog for dog's biting veterinarian or veterinarian's employee. 4 ALR4th 349.

   Liability of owner or operator of business premises for injury to patron by dog or cat. 67 ALR4th 976.

   Modern status of rule of absolute or strict liability for dogbite. 51 ALR4th 446.

   Personal injuries inflicted by animal as within homeowner's or personal liability policy. 96 ALR3d 891.

   Who "harbors" or "keeps" dog under animal liability statute. 64 ALR4th 963.

 

NOTES APPLICABLE TO ENTIRE TITLE

 

CROSS REFERENCES

   Animal care, breeding and feed, see RSA 435.

   Animal use in science classes and science fairs, see RSA 644:8-c.

   Beekeeping, see RSA 429.

   Companion animals in housing for the elderly, see RSA 161-F:30 et seq.

   Confinement of animal in motor vehicle or other enclosed space, see RSA 644:8-aa.

   Cruelty to animals generally, see RSA 644:8.

   Diseases of domestic animals, see RSA 436.

   Docking tail of horse, see RSA 644:8-b.

   Exhibitions of fighting animals, see RSA 644:8-a.

   Fish and game generally, see RSA 206 et seq.

   Horse and dog racing, see RSA 284.

   Interference with police dogs or horses, see RSA 644:8-d.

   Liability of owners of livestock trespassing in burial places or graveyards, see RSA 635:3.

   Liability of persons using traps for injury or damage to domestic animals, see RSA 210:18.

   Lien for food and care of animals, see RSA 448:2-a.

   Lien for pasturage of animals, see RSA 448:2.

   Lien for stallion service fee, see RSA 448:3.

   Sale of pets and disposition of unclaimed animals, see RSA 437.

 

NOTES APPLICABLE TO ENTIRE CHAPTER

 

AMENDMENTS--1994. 1994, 99:1, eff. July 9, 1994, added "and cats" in the chapter heading.

 

CROSS REFERENCES

   Animal population control program, see RSA 437-A.

   Applicability of chapter to wolf hybrids, see RSA 466-A:2.

   Hunting with dogs, see RSA 207:12-a et seq.

   Licensing of cats, see RSA 466:13-a.

   Power of city council to adopt ordinances regulating keeping of dogs, see RSA 47:17.

   Rabies control, see RSA 436:99 et seq.

   Use of dogs by deaf, blind or hearing or mobility impaired persons, see RSA 167-D.

 

NOTES APPLICABLE TO ENTIRE HEADING

 

CROSS REFERENCES

   Liability of owners for damages to game by dogs, see RSA 466:33 et seq.

   Liability of owners for failure to control dogs deemed to be vicious, a menace or a nuisance, see RSA 466:31-a.

   Liability of owners for failure to restrain dogs under municipal dog control ordinances, see RSA 466:30-a.

 

LIBRARY REFERENCES

 

CJS

   Animals § §  177-187, 194, 196, 197, 287, 288, 290, 291.