In addition to strict liability, negligence (see Dog Injuries Under the Negligence Theory: Cases to Know), and negligence per se theories of liability for injuries resulting from a dog bite or attack (see Dog Bites/Injuries), California law imposes liability under the theory of scienter. The term “scienter” simply means that the owner or custodian of a dog had a pre-existing knowledge of their dog’s prior viciousness. If this prior knowledge is shown after the dog bites someone, the owner or custodian of the dog is liable, without the victim having to prove the owner or custodian’s wrongful intent or negligence. While a scienter argument applies to both the owner and the custodian who was aware of the dog’s prior dangerous propensities, it is for all intents and purposes irrelevant for the dog’s owner because of California’s strict liability rule (see Dog Bites and Dog-Related Injuries), but it does remain priceless for a non-owner custodian of the dog that bites someone. All that must be shown to impose liability under a scienter theory is that the dog had prior dangerous behavior and the custodian knew of it. To show the dog’s prior dangerous behavior, the dog need not have previously bitten someone, it only needs to be shown that the dog exhibited a dangerous inclination to bite.
What must be noted is that the dog’s propensity to bite cannot be based upon its prior biting of a non-human (see If a Dog Bites Another Dog? Is the Owner Liable?). The dog’s biting of another dog or animal cannot be used to show it has dangerous propensities to bite humans. Additionally, if the dog previously bit someone, but was justified in doing so, this bite cannot be used to show the dog’s dangerous propensities. If the dog, for example, bit someone trying to attack its owner, it would have been justified in doing so. Finally, as mentioned above, dangerous propensities do not have to be shown through the dog’s prior biting, it may be inferred by the general reputation of the dog, the dog’s breed and size or the fact that the dog is kept chained up. Don’t forget, the classic defenses for the dog owner or custodian to assert are always available, including assumption of the risk, provocation and comparative negligence (see Dog Bite Attack/Defenses). If you or a loved one have been attacked or bitten by a dog, contact our dog attack attorney for a free consultation.