Nebraska Dog Bite Law

CHAPTER 54. LIVESTOCK

ARTICLE 6. DOGS AND CATS

(a) DOGS

R.R.S. Neb. § 54-601 (2002)

§ 54-601. Dogs; personal property; owner liable for damages

Dogs are hereby declared to be personal property for all intents and purposes, and the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (1) to any person, other than a trespasser, by reason of having been bitten by any such dog or dogs and (2) to any person, firm, or corporation by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons or any sheep or other domestic animals belonging to such person, firm, or corporation. Such damage may be recovered in any court having jurisdiction of the amount claimed.

HISTORY: Laws 1877, § 1, p. 156; Laws 1899, c. 4, § 1, p. 54; R.S.1913, § 172; C.S.1922, § 169; C.S.1929, § 54-601; R.S.1943, § 54-601; Laws 1947, c. 192, § 1, p. 629; Laws 1961, c. 268, § 1, p. 786; Laws 1992, LB 1011, § 1.

ANALYSIS
Construction

ANALYSIS
Construction
Purpose
Applicability
"Chase."
Common law actions
Elements
Intentional provocation
Landlord
Negligence
Playful and mischievous
"Running at large."
Strict liability
Traveler on adjacent highway
"Trespasser."
Unlawful killing of dog
"Worry."
"Wound."

CONSTRUCTION

JUDICIAL DECISIONS

CONSTRUCTION

This section removes the common law "scienter" requirement so that nontrespassers are no longer required to prove that a dog owner had knowledge of the dog's vicious tendency or that the dog had previously bitten anyone in order to maintain an action against the owner; trespassers, however, are still required to prove the dog owner's knowledge of the animal's propensity for viciousness. Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996).

This section must be construed strictly because it abrogates a common-law right. Paulsen ex rel. Paulsen v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979); Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996).

PURPOSE

The legislature by enacting this section removed the common-law restriction of proving scienter or knowledge of the dangerous propensities of dogs, but only as it applied to the actions specified in the statute. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

The legislature was fully aware of the need for protection from the intentional, deliberate, and purposeful acts of dogs and as a result restricted this section to those acts manifesting such qualities. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

APPLICABILITY

Where an action regarding a dog bite was not against the dog owner, but against the owners of the leased property, this section did not apply. McCullough v. Bozarth, 232 Neb. 714, 442 N.W.2d 201 (1989).

"CHASE."

The word "chase" is defined variously as "to follow quickly or persistently in order to catch or harm" and "to make run away; drive" or "to go in pursuit." Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

COMMON LAW ACTIONS

This section does not abrogate the common law tort action for injuries caused by dogbites. Guzman v. Barth, 250 Neb. 763, 552 N.W.2d 299 (1996).

ELEMENTS

Evidence showing that the defendants' dog first chased and then collided with the plaintiff's motorcycle, causing the motorcycle to tip over and injure the plaintiff, was sufficient to support summary judgment on plaintiff's strict liability claim. Johnson v. Lindley, 41 F. Supp. 2d 1021 (D. Neb. 1999).

INTENTIONAL PROVOCATION

This section creates a cause of action based upon strict liability on the part of a dog owner; however, the injured person will be barred from recovering if he intentionally provoked the animal and thereby caused it to attack him. Whether such provocation was intentional and knowing is a question of fact to be determined by the jury. Paulsen ex rel. Paulsen v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979).

LANDLORD

A landlord is liable for injuries caused by the attack of a tenant's dog only where the landlord had actual knowledge of the dangerous propensities of the dog and where the landlord, having that knowledge, nevertheless leased the premises to the dog's owner or, by the terms of the lease, had the power to control the harboring of a dog by the tenant and neglected to exercise that power. McCullough v. Bozarth, 232 Neb. 714, 442 N.W.2d 201 (1989).

NEGLIGENCE

Whatever liability may attach to the owner of dogs, contributing to the injury of the stock, is in the nature of negligence in allowing his dogs to escape from his control; for if the dog is under the control of its owner when doing the act, it is then the act of the owner, and not of the dog. Cook v. Pickrel, 20 Neb. 433, 30 N.W. 421 (1886).

PLAYFUL AND MISCHIEVOUS

In response to a summary judgment motion, the owners' unsubstantiated assertion that their dog was behaving in a "playful and mischievous" manner when it chased and then collided with the plaintiff's motorcycle was insufficient to raise the issue as an affirmative defense in a summary judgment proceeding. Johnson v. Lindley, 41 F. Supp. 2d 1021 (D. Neb. 1999).

When the words "killing," "wounding," "worrying," or "chasing," are read together, they exclude playful and mischievous acts of dogs. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975); Holden ex rel. Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993).

Where the plaintiff's injury was caused by the playful and mischievous act of defendant's dog, the injury was not within the scope of protection afforded by this section. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

"RUNNING AT LARGE."

A dog is not running at large when he is within calling distance and sight of the owner's family and under their control. Brown v. Graham, 80 Neb. 281, 114 N.W. 153 (1907).

STRICT LIABILITY

An owner may be strictly liable for injuries inflicted by his dog without any proof that the owner knew of the dog's dangerous propensities. Holden ex rel. Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993).

Dog owners are statutorily liable for any and all damage without proof of scienter or knowledge of dangerous propensities of their dog for biting and by reason of such dog or dogs killing, wounding, worrying, or chasing domestic animals and persons. Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

TRAVELER ON ADJACENT HIGHWAY

The owner of a dog, known by him to have vicious and mischievous propensities, owes a legal duty to protect from injury a traveler passing along the highway adjacent to his premises. Netusil v. Novak, 122 Neb. 749, 241 N.W. 531 (1932).

The owner of a dog known by him to have vicious propensities was held liable to a traveler passing along highway for shock causing nervous prostration where the dog growled and bared teeth menacingly without leaving the owner's premises. Netusil v. Novak, 120 Neb. 751, 235 N.W. 335 (1931), modified on other grounds, Paulsen v. Courtney, 202 Neb. 791, 277 N.W. 233 (1979).

"TRESPASSER."

A trespasser is a person who enters or remains upon premises in possession of another without the express or implied consent of the possessor. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

A person can trespass on another's property by simply extending his or her arm over the boundary fence. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

In making a determination as to whether a child was capable of the necessary intent to be classed as a trespasser, the standard of conduct to be used is that of a reasonable person of like age, intelligence, and experience under the circumstances. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

The word "trespasser," as used in this section, must be construed strictly. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

The trial court was in error in holding as a matter of law that a child was not a trespasser into the defendant's dog's kennel and that the defendant was liable for the child's dog bite injuries. Kenney v. Barna, 215 Neb. 863, 341 N.W.2d 901 (1983).

UNLAWFUL KILLING OF DOG

No person has a right to kill a dog for past and finished misconduct of the dog so killed. Brown v. Graham, 80 Neb. 281, 114 N.W. 153 (1907).

A dog has a money value, which the owner may recover from one who wrongfully and unlawfully kills his dog. Nehr v. State, 35 Neb. 638, 53 N.W. 589 (1892).

"WORRY."

The word "worry" means "to treat roughly as with continual biting" or "to bite or tear with the teeth." Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

"WOUND."

The word "wound" is defined as "an injury of a person or animal in which the skin or other membrane is broken, as by violence or surgery." Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975).

RESEARCH REFERENCES

ALR.

Liability for injury inflicted by horse, dog, or other domestic animal exhibited at show. 68 ALR5th 599.

Landlord's liability to third person for injury resulting from attack on leased premises by dangerous or vicious animal kept by tenant. 87 ALR4th 1004.

Liability for injuries inflicted by dog on public officer or employee. 74 ALR4th 1120.

Liability of owner or operator of business premises for injury to patron by dog or cat. 67 ALR4th 976.

Modern status of rule of absolute or strict liability for dogbite. 51 ALR4th 446.

Liability of dog owner for injuries sustained by person frightened by dog. 30 ALR4th 986.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery. 7 ALR4th 607.

Liability of owner of dog for dog's biting veterinarian or veterinarian's employee. 4 ALR4th 349.

Construction and application of ordinances to unrestrained dogs, cats, or other domesticated animals. 1 ALR4th 994.

NOTES APPLICABLE TO ENTIRE CHAPTER

CROSS REFERENCES.

Constitutional provisions:

Corporate farming or ranching, see Article XII, § 8, Constitution of Nebraska.

Taxation, method of, see Article VIII, § 1, Constitution of Nebraska.

Bureau of Animal Industry, see § 81-202.

Commodity Code, see § 8-1701.

Dairy industry:

Manufacturing Milk Act, Nebraska, see § 2-3946.

Pasteurized Milk Law, Nebraska, see § 2-3901.

Department of Agriculture:

Establishment, see § § 81-101 to 81-103.

General powers, see § 81-201.

Equine activities, liability, warning signs, see sections 25-21,249 to 25-21,253.

Experiment and extension stations, University of Nebraska, see § 85-145 et seq. and Chapter 85, article 2.

Express companies, care of livestock, see § 86-502 et seq.

Fence viewers, livestock owners, see § 34-106.

Hay, municipal inspection and weighing powers, see § § 16-224 and 17-554.

Horse thieves, posting of rewards for, see § 29-415.

Insurance of livestock, companies may be formed to provide, see § 44-201.

Liens:

Agricultural production input, see § 52-1401 et seq.

Animal service, see § 52-1501 et seq.

Filing system, farm product security interests, see § 52-1301 et seq.

Veterinarian, see § 52-701.

Livestock exposition, conducting a prerequisite to procuring license for horseracing, see § 2-1204.

Livestock Feeders and Breeders Association, Nebraska, see § 2-2806.

Livestock forage vehicles, restrictions, see § 60-6,305.

Livestock lanes adjacent to public roads, see § § 39-1808 et seq.

Livestock loan company, investments authorized, see § 8-148.02.

Livestock waste control facility, associated water structures, requirements, see § 46-257.

Municipalities, powers of:

First-class cities, see § § 16-210, 16-235, 16-237, 16-240, and 16-901.

Livestock feeding facility or project, prohibited acts, see § 13-1102.

Metropolitan-class cities, see § 14-102.

Primary-class cities, see § § 15-208, 15-217 et seq., and 15-237.

Second-class cities and villages, see § § 17-121, 17-138, 17-547, 17-557, and 17-1001.

Nonstock cooperative marketing companies, see § 21-1401 et seq.

Pathogenic microorganisms, regulation, see § 71-1801 et seq.

Poultry, disease control, Poultry Disease Control Act, Nebraska, see § 2-3001 et seq.

Predators, destruction, see § 37-559.

Rabies, vaccination and control, see § 71-4401 et seq.

Railroads:

Fences and cattle guards, duties and liabilities, see § § 74-601 et seq.

Shippers, duties and liabilities to, see Chapter 74, article 5.

Real estate used for ranching, interest in, reports required, see § 76-1520 et seq.

Sheep and cattle, tax for predatory animal control program, see § 23-361.

State Veterinarian, see § 81-202 et seq.

Taxation, exemption, see § 77-202.

Town meeting, regulatory power of electors at, see § 23-224.

Veterinarians:

Lien of, see § 52-701.

Practice of veterinary medicine and surgery, see § § 71-1,152.01 to 71-1,166.

State Veterinarian, see § 81-202 et seq.

University of Nebraska, cooperative program in veterinary medicine, see § § 85-180.13 et seq. and 85-1,104.

Watering:

Criminal acts, see § 28-1308.

Ground water, domestic use preference, see § 46-613.

Disclaimer: The dog bite, animal attack, personal injury, wrongful death, negligence or other legal information presented at this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney client relationship. Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Please contact a dog bite lawyer or animal attack attorney for advice on your rights.