Day on Torts
A Tennessee dog bite victim who cannot make a successful claim under the Tennessee Dog Bit Statute may not be precluded from pursuing a common law negligence claim.
In Hudson v. Gravette, No. M2022-01787-COA-R3-CV (Tenn. Ct. App. May 8, 2025), the plaintiff was an employee at a dog boarding kennel. The defendants owned two English bulldogs that were often boarded at the kennel. In fact, between May 2018 and February 2019, the dogs were at the kennel almost 50% of the time.
On the day of the incident, the plaintiff was the first employee to arrive at the kennel, and she let all the dogs out in groups. When she released the defendants’ dogs, one began nipping at her ankle, causing her to fall. Both dogs then attacked her for five to ten minutes. The plaintiff required emergency surgery, and she suffered from continued painful nerve damage and post-traumatic stress.
The plaintiff filed this suit, asserting a claim under Tenn. Code Ann. § 44-8-413, Tennessee’s Dog Bite Statute, and a common law negligence claim. The plaintiff submitted evidence showing that the dogs bit an employee and scratched a different employee at another kennel before beginning to use the kennel at which the plaintiff worked, and that the defendants were aware of the dogs’ violent propensities. The defendants filed a motion for summary judgment, which the trial court granted. The trial court found that the kennel was an “owner” for purposes of the dog bite statute, and that the plaintiff therefore could not prove liability against the defendants. The trial court further ruled that the statute abrogated the plaintiff’s common law negligence claim. On appeal, the ruling that the plaintiff could not make a case under the statute was affirmed, but summary judgment on the common law negligence claim was reversed.
The Court began by determining whether the kennel was an owner under Tenn. Code Ann. § 44-8-413. The Dog Bite Statute defines an owner as “a person who, at the time of the damage caused to another, regularly harbors, keeps, or exercises control over the dog…” The Court noted that this definition is broader than the traditional definition of dog owner. The Court pointed out that the dogs spent almost half their time in the previous nine months at the kennel during stays ranging from five to sixteen days. During these stays, the kennel was exclusively in control of the dogs. On the day of the incident, the dogs had already been at the kennel for several days. Based on the facts, the Court agreed that the kennel was a statutory owner in this case.
Next, the Court considered whether the kennel’s status as an owner precluded a statutory claim against the defendants. Looking to the language of the statute, the Court wrote that “the issue of statutory liability in this case turns on who, at the time of the damage caused to another, was in a position to control the dog but failed to do so.” Here, the kennel was in control of the dogs, and the defendants were “completely physically separated from the dogs.” The Court thus affirmed summary judgment for the defendants on the statutory claim.
Finally, the Court analyzed whether the plaintiff could proceed with a common law negligence claim in light of the Dog Bite Statute. The Court wrote that no other cases had “considered whether a finding that a person other than a dog’s legal owner was the owner who violated the duty to keep the dog under reasonable control at all times abrogates any common law claim against the dog’s legal owner.” The Court pointed out that a previous case that considered statutory abrogation in the context of the Dog Bite Statute arose under a different subsection of the statute.
Noting that the statute increased owner accountability, the Court ultimately held that the plaintiff’s common law claim was not abrogated here. The Court ruled that “where a dog injures a person on the property of someone other than the dog’s legal owner, a finding that the legal owner is not subject to liability under the Tenn. Code Ann. § 44-8-413(a) does not abrogate a claimant’s common law negligence claim against the dog’s legal owner when the legal owner knew of the dog’s vicious propensities.” The Court specifically pointed out that “this holding comports with those from courts in other jurisdictions with strict liability dog bite statutes.”
While summary judgment on the statutory claim was affirmed, summary judgment on the common law negligence claim was accordingly reversed.
The Court of Appeals’ ruling essentially closed a possible loophole in liability and prevented a dog owner who knew of a dog’s dangerous propensity from escaping liability simply because the dog attacked while not in someone else’s control.
This opinion was released five months after oral arguments in this case.