Dog Bite Lawyer: New Mexico Dog Bite Law

New Mexico Dog Bite Law

CHAPTER 77. LIVESTOCK CODE

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ARTICLE 1. DOGS AND DOMESTICATED ANIMALS

N.M. Stat. Ann. § 77-1-10 (2002)

§ 77-1-10. Vicious animals; rabid or unvaccinated dogs and cats; failure to destroy

A. It is unlawful for any person to keep any animal known to be vicious and liable to attack or injure human beings unless such animal is securely kept to prevent injury to any person.

B. It is unlawful to keep any unvaccinated dog or cat or any animal with any symptom of rabies.

C. It is unlawful to fail or to refuse to destroy vicious animals or unvaccinated dogs or cats with symptoms of rabies as prescribed by regulation of the health and environment department [department of health] for the protection of public health and safety.

HISTORY: Laws 1901, ch. 105, § 3; Code 1915, § 220; C.S. 1929, § 4-2003; 1941 Comp., § 49-104; 1953 Comp., § 47-1-3; Laws 1959, ch. 176, § 7; 1973, ch. 170, § 7; 1977, ch. 253, § 56; 1979, ch. 194, § 3.

NOTES:

BRACKETED MATERIAL. --The bracketed reference to the department of health was inserted by the compiler, as Laws 1991, ch. 25, § 16 repeals former 9-7-4 NMSA 1978, relating to the health and environment department, and enacts a new 9-7-4 NMSA 1978, creating the department of health. The bracketed material was not enacted by the legislature and is not part of the law.

THE 1977 AMENDMENT substituted "health services division of the health and environment department" for "health and social services department" and "division" for "department" in the second paragraph.

THE 1979 AMENDMENT substituted "failure to destroy" for "procedure following death from rabies" in the catchline, designated the first sentence of the previously undesignated first paragraph as Subsection A and the second sentence of the previously undesignated first paragraph as Subsection B, substituted "vicious" for "vicous" following "known to be" and "or" for "and" following "to attack" in Subsection A, substituted "with any symptom" for "which has shown any symptom" in Subsection B, deleted "except that, if such animal has bitten a human being, it shall be confined for a ten-day period" from the end of Subsection B, deleted the last sentence of the previously undesignated first paragraph and the second undesignated paragraph, relating to the sending of the head of any animal suspected of having died of rabies to a laboratory, added Subsection C and made other minor changes.

COMMON LAW DEEMED TEST OF LIABILITY FOR DOG BITE. --There is no statute in New Mexico making the owner of a dog an insurer against damages inflicted by it. The only statute on the subject is this section, making it unlawful to keep a dog known to be vicious. Thus, common law is the test of liability in an action for injuries to a minor child who was severely bitten by a dog while on the premises of the defendant. Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953).

AM. JUR. 2D, A.L.R. AND C.J.S. REFERENCES. --Personal injuries inflicted by animal as within homeowner's or personal liability policy, 96 A.L.R.3d 891.

Modern status of rule of absolute or strict liability for dogbite, 51 A.L.R.4th 446.

Who "harbors" or "keeps" dog under animal liability statute, 64 A.L.R.4th 963.

Liability of owner or operator of business premises for injury to patron by dog or cat, 67 A.L.R.4th 976.

Liability for injuries caused by cat, 68 A.L.R.4th 823.

Liability for injuries inflicted by dog on public officer or employee, 74 A.L.R.4th 1120.

Validity and construction of statute, ordinance, or regulation applying to specific dog breeds, such as "pit bulls" or "bull terriers," 80 A.L.R.4th 70.

Landlord's liability to third person for injury resulting from attack on leased premises by dangerous or vicious animal kept by tenant, 87 A.L.R.4th 1004.

Landlord's liability to third person for injury resulting from attack off leased premises by dangerous or vicious animal kept by tenant, 89 A.L.R.4th 374.

Liability for injury inflicted by horse, dog, or other domestic animal exhibited at show, 68 A.L.R.5th 599.

UNIFORM JURY INSTRUCTIONS--CIVIL

CHAPTER 5. ANIMALS

N.M. U.J.I. Civ. 13-506 (2003)

Review Court Orders which may amend this Rule

13-506 Liability of dog owner

An owner of a dog is liable for damages proximately caused by the dog if the owner knew, or should have known, that the dog was vicious or had a tendency or natural inclination to be vicious.

[The owner of such a dog is not liable to the person injured, if the injured person had knowledge of the propensities of the dog and wantonly excited it or voluntarily and unnecessarily put himself in the way of the dog.]

DIRECTIONS FOR USE

This instruction should be used when the issue and the evidence is that of damages from attack or bite by a dog.

NOTES:

COMPILER'S ANNOTATIONS

COMMITTEE COMMENT. --Section 77-1-10 NMSA 1978 states that it is unlawful for a person to keep an animal known to be vicious and liable to attack and injure human beings unless the animal is secure.

Reference to the case of Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953), should be made by the trial lawyers and the court in any case involving a claim of damages as the result of an attack by a domestic animal. It is apparent that the common law prevails in this area in New Mexico. Scienter on the part of the defendant is required. The vicious propensity of the dog must have been previously manifested against a human being. It is insufficient that the dog exhibited vicious tendencies toward other animals.

See also the case of Torres v. Rosenbaum, 56 N.M. 663, 248 P.2d 662 (1952).

In the first edition, the substance of this instruction was covered by UJI 5.3.

INSTRUCTION MANDATORY IN DOG-BITE CASES. --It is error for the district court to give jury instructions on the issues of negligence and contributory negligence when this mandatory instruction states the entire law of liability and relief from liability in connection with dog-bite injuries. Aragon v. Brown, 93 N.M. 646, 603 P.2d 1103 (Ct. App. 1979).

INSTRUCTION IMPOSES STRICT LIABILITY. --This instruction imposes strict liability once knowledge is proven, thus, it cannot be given to the jury in an action under the waiver of immunity provision of 41-4-6 NMSA 1978, which embodies a negligence theory of recovery. Smith v. Village of Ruidoso, 128 N.M. 470, 994 P.2d 50 (Ct. App. 1999).

NEGLIGENCE CLAIMS AGAINST A MUNICIPALITY NOT PRECLUDED. --This section does not provide the sole theory of liability in dog-bite cases. A negligence claim under 41-4-6 NMSA 1978 is appropriate where the dog owner lacks knowledge of the dog's vicious propensities and ineffectively controls the animal in a situation where it would reasonably be expected that injury could occur. Smith v. Village of Ruidoso, 128 N.M. 470, 994 P.2d 50 (Ct. App. 1999).

AM. JUR. 2D, A.L.R. AND C.J.S. REFERENCES. --4 Am. Jur. 2d Animals § 114 et seq.

Liability of owner of dog known by him to be vicious for injuries to trespasser, 64 A.L.R.3d 1039.

3A C.J.S. Animals § 232.