Dog had displayed no propensity to harm people; risk of bite was reasonably foreseeable
The BC Supreme Court has dismissed the personal injury claim of a woman who was bitten by a friend’s dog when she attempted to stop a dog fight.
In Garside v. Dougan, 2022 BCSC 799, Nicole Garside and Alicia Dougan were close friends who used to work together in Langford, BC. The two friends often arranged for playdates between their dogs. Dougan owned a pit-bull mix, Renny, while Garside had a boxer, Titan. The dogs played together well and there were no concerns of aggressive behavior between them.
On Feb. 12, 2018, Garside invited Dougan to her house so Renny and Titan could play in the yard. While the two dogs played, Garside kept her other dog, Jenny, inside the house. Renny tended to show aggressive behaviour to some dogs, so Garside and Dougan had agreed to keep Jenny and Renny apart. However, at some point during the playdate, Garside opened the door with Jenny between her legs. Renny immediately attacked Jenny and, as Garside attempted to separate them, Renny bit her hand.
The bite caused serious puncture wounds on Garside’s hand that led to stitches, treatment, antibiotics, and a broken metacarpal bone that required surgery and the placement of a pin to straighten it. Garside filed a $100,000 claim for damages, alleging negligence and scienter, which is an action in tort law.
To establish scienter, the court said that it had been set in Janota-Bzowska v. Lewis (1997) that the plaintiff must show that “the defendant was the owner of the dog, that the dog had manifested a propensity to cause the type of harm occasioned, and that the owner knew of that propensity.”
The court said that the element of propensity to cause harm does not require that an actual person be bitten, but the trait or propensity to harm a person is required to be established.
The evidence indicated that when Renny was two years old, she broke loose from her leash and attacked a small dog. She had also attacked and killed a parakeet on another occasion. The court found that Renny likely had a prey drive towards birds, and she tended to react negatively and aggressively towards some dogs. However, the court also pointed out that scienter required proof that Renny had a propensity to bite people, not just attack other animals. The tort is one of personal injury and the type of harm for which propensity must be established must also be one of personal injury at common law, the court said.
In this case, the court found that the evidence firmly established that Renny had no propensity to act aggressively to humans, and Garside even candidly agreed so.
Janota-Bzowska also set out the requirements to establish negligence for a dog bite. The plaintiff must prove that the defendant knew or ought to have known that her dog was likely to create a risk of injury to third persons and that the defendant failed to take reasonable care to prevent such injury.
In this case, the court found that it was reasonably foreseeable that anyone who attempted to break up a dog fight would suffer a bite from a dog that otherwise has no propensity to injure people. The court concluded that even if Dougan owed a duty of care to Garside, she did not breach the required standard of care because it was reasonably foreseeable under the circumstances that Renny would get into an altercation with Jenny which might cause harm to other persons.
In addition, the court also found that Dougan took reasonable care by discussing with Garside how to keep Jenny and Renny separate, checking that Jenny was indeed inside the house before letting Renny out of her car to play in the yard, and mitigating Garside’s injury by swiftly disengaging Renny from Jenny. In the end, the court concluded that Dougan was not liable to pay damages.
