Barney bit someone. Not Barney the purple dinosaur. Barney the White House dog, a Scottish terrier. The victim was Reuters reporter Jon Decker, who must now live down the fact that he was even covering the pooch to begin with. He received medical attention and antibiotics from the White House doctor because the skin was broken.
But let’s leave aside the cute comments about Barney being upset by the election, lame duck dogs and Carl Rove as dog trainer, and cut to the real issue: Can Decker sue President Bush for the dog bite? Each state has different rules.
In New York, as it happens, our highest court dealt with the subject this year in Bernstein v Penny Whistle Toys, Inc. The bite took place, not at a home where these things usually happen but, in a store. The eight year old plaintiff had stopped to pet, hug and kiss Scooter, a Labrador mix, and he bit her on the cheek. She took 40-50 stitches on the outside. Scooter — no relation to convicted Cheney aide Libby — had no prior history of growling, jumping, biting or otherwise abusing people in the past.
Now the rule has been for almost 200 years, according to the majority opinion of the lower appellate court, that in order for a victim to recover from an animal’s owner, s/he must show that the dog’s owner knew or should have known of the dog’s “vicious propensities.” If the victim could prove this, then strict liability applied to the dog’s owner.
But the circumstance of this happening in a store raised a novel issue for the appellate court below that resulted in a split decision. It wasn’t a matter of dog ownership, but the responsibilities of an owner of a business to keep it safe for customers. The dissent argued that a plaintiff might prevail under a premises liability theory using general negligence as to the store owner instead of strict liability that applies to dog owners. In colorful writing, Justice Saxe wrote of the foreseeability of such an incident:
Defendants … own and operate a business, the primary purpose of which is to sell its wares to and for children. It is necessarily their goal to attract children into the store as customers. It may be assumed that, especially in the summertime, many of those young customers will arrive in the store holding or eating ice cream, custard, or other sweets or foods. Similarly, it is quite likely that a dog, otherwise perfectly friendly and well behaved, might experience an instinct to sniff out and attempt to obtain and consume a morsel of food or something sweet that was placed in close proximity.
The Court of Appeals rejected the reasoning of that dissent, and summary judgment was granted for the store owner. The rule that an owner must have notice of the vicious propensities — also known as the “every dog gets one bite” rule– remains in effect.
So is Barney a dangerous dog that has bitten or threatened before? Yes, in fact, he has, which may come as no surprise to Bush bashers. President Bush owns a dog with known vicious propensities — he has bitten White House visitors before according to this ABC News story:
On West Wing White House tours, visitors are not permitted in the Rose Garden if Barney is outside because he has bitten visitors in the past.
If this happened in New York, therefore, Bush would no doubt be in deep doo–doo for injuries Barney inflicts.
Of course, this happened at the White House. So we turn to D.C. doggie law, albeit only quickly since, well, the guy wasn’t bitten too badly and he’s probably more embarrassed than anything else. So there’s only so far I’m going to go with this. But here goes…
In Washington D.C. our humiliated Reuters reporter also has a case. Because, according to D.C. Code section 8-1808:
“[n]o person who has control or custody of a dog shall, direct, encourage, cause, allow or otherwise aid or assist that dog to threaten, charge, bite, or attack a person or other animal…”
This apparently brings on the presumption of negligence against the dog handler, assuming the accuracy of this website. In this case that means a White House staffer. (Whether suit would be against the government under the Federal Tort Claims Act for employing the negligent dog handler, or against Bush personally for owning the vicious dog, is an interesting question, but one for another day.)
It’s also worth noting that, because the dog has bitten before and wasn’t muzzled, that things look pretty good for our reporter as plaintiff. Though I’m guessing he would have preferred not to be bitten to begin with.
But there seems to be one other little catch to our proposed lawsuit. In Washington D.C., if a victim is even one percent responsible for the injury, s/he apparently can’t recover. Was the reporter at least one percent responsible for bending down and petting Barney?
For that we return to the story from ABC News that notes that reporter Decker first asked the dog handler if he could pet Barney, and did so only after getting the go-ahead. Given that the dog had known “vicious propensities,” as lawyers like to say, that was a pretty big no-no.
So, it seems, our reporter has a case. For small claims court. Very, very small claims court.
Update, since I know you are all dying for more on this breaking story:
- Barney The First Dog Strikes First Republican Blow Against Corrupt And Biased Media (Start Thinking Right)
- Barney Bites Reporter (RightPundits.com)
- First Dog takes a bite at White House reporter (CNN Political Ticker)
- One Free (Presidential) Bite Rule: Bush’s Dog Barney Bites Reporter (Jonathan Turley):
The Scottish terrier bit Reuters reporter Jonathan Decker in a dream of any personal injury lawyer: a well photographed, unprovoked attack. The greatest danger to Decker was being crushed by the hundreds of lawyers on nearby K St, rushing to give him their business cards.
- Barney Bush: “I’ll Take Off His Ear Next” (Comedy Central)
“Yeah, that’s right, I drew blood,” said Barney, interviewed after the “accident.” “Look, I’m eight years old. You do the math. You know what I’m saying? I’m on the Zoloft to keep from killing y’all!”