The “very act of unprovoked biting” by a dog does not necessarily mean the dog is dangerous or vicious. Under our common law, all dogs, regardless of breed or size, are presumed to be harmless domestic animals. This presumption is overcome by evidence of a known or dangerous propensity as shown by specific acts of the particular animal. A dangerous propensity is a tendency of the animal to do any act that might endanger the safety of persons or property in a given situation. Thus, depending on the facts of a particular case, a dog’s unprovoked biting may or may not be evidence of the dog’s vicious tendencies. For example, although technically a “biting,” a playful nibble on the hand is one thing, while a “teeth-baring” clamp on the arm is quite another.
The question remains whether in light of a dog exhibiting dangerous or vicious tendencies for the first time, may a jury reasonably infer that the dog’s owner knew, or at least should have known of those tendencies. If so, then this inference alone is enough to create a genuine issue of material fact to defeat a dog owner’s claim that he or she was unaware of such tendencies. The Indiana Courts have concluded that a jury may not make such an inference. In certain instances, a cause of action in negligence can survive without the owner’s actual knowledge of the animal’s dangerous propensities. Indeed, such knowledge may even be constructive. Nonetheless, when an owner does not know of his animal’s dangerous propensities, the rule is not that the jury may infer or impute such knowledge. Rather, “the rule is that the owner is bound to know the natural tendencies of the particular class of animals to which [the] dog belongs.” If the propensities of the class to which the dog belongs are the kind which one might reasonably expect would cause injury, then the owner must use reasonable care to prevent injuries from occurring. Thus, where there is no evidence of an owner’s actual knowledge that his or her dog has dangerous propensities; the owner may nonetheless be held liable provided there is evidence that the particular breed to which the dog belongs has dangerous propensities. And this is so even where the owner’s dog has never before attacked or bitten anyone. (observing that the ferocious nature of a bulldog was sufficient to provide the owner with constructive notice of the dog’s dangerous propensities) In essence, a jury may not infer that an owner knew or should have known of a dog’s dangerous or vicious propensities from the fact of a first time, unprovoked biting. Rather in such an instance, a jury may infer that the owner knew or should have known of the dogs dangerous or vicious propensities only where evidence shows that the particular breed to which the owner’s dog belongs is known to exhibit such tendencies.
We may also use statutory violations for the purpose of imposing liability on dog owners for their animals biting. Under I.C. 15–5–12–1, a victim that is a letter carrier can prove liability for a dog bite simply due to the bite occurring. A statute such as this one is in derogation of the common law. Here, the legislature clearly intended to change the common law and did so by explicitly removing the common law presumption that a dog is harmless unless it acts otherwise. Some states have chosen to impose strict liability for all dog bites. As the Restatement notes, statutes frequently abolish the necessity of science and impose strict liability for all harm caused to human beings and livestock by dogs. The Indiana statute imposes a less sweeping revision of common law. It protects only public servants, and does not expressly set a standard of conduct or impose liability for a bite. The trial court concluded that the effect of the statute was to render the owner negligent per se. Negligence per se is ordinarily found where the actor has violated a duty imposed by law. For example, violation of a statute making it a misdemeanor to permit cattle to wander onto a highway is negligence per se. Just as the Indiana statute does not explicitly create liability; it also does not expressly establish a standard of conduct. It thus does not suggest negligence per se under standard doctrine. But, proof of a violation of a leash law or other municipal ordinance can be used to establish negligence.
Finally, when wild animals are kept as pets, an owner is liable for injuries caused by the animal. This is so even if the owner had no prior knowledge of the animal’s propensity to cause harm, and even if the owner has exercised the utmost care in preventing harm. In essence, strict liability is imposed on owners of wild animals. Id. Owners of domestic animals may also be held liable for harm caused by their pet but only if the owner knows or has reason to know that the animal has dangerous propensities. The owners of creatures which, as a species, are harmless and domesticated, and are kept for convenience or use, such as dogs … are not liable for injuries willfully committed by them unless he is proved to have had notice of the inclination of the particular animals complained of to commit such injuries. As with wild animals, this liability attaches regardless of the amount of care exercised by the owner. However, unlike with wild animals, when the owner of a dog has knowledge of its dangerous propensities, the rules of liability are based upon negligence and not strict liability. Because it is an action sounding in negligence, the defenses of contributory negligence and assumption of risk are available to limit this liability.