Although numerous theories can be alleged in lawsuits relating to dog bites, strict liability is a theory most frequently pleaded. In such a case, the controlling issue to be determined is whether the party against whom suit is brought has knowingly kept or harbored a vicious dog. Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex.Civ.App. Eastland 1971, writ ref d n.r.e.). Because such viciousness is generally sought to be established through evidence of prior bites, this principal of liability is often referred to as the One Bite Rule. But, it should be noted that despite this moniker, it is not viciousness alone which will support liability, but also dangerousness in general. See Restatement (Third) of Torts, 23 cmt. c (2010) ( For strict liability to attach, it is not required that the animal be vicious or aggressive; a finding of the animal’s abnormal dangerousness is sufficient.).
The reason for the imposition of such strict liability is explained in the Third Restatement of Torts, which states:
Given the defendant’s knowledge, the reasonableness of the defendant’s conduct in retaining the animal is at least questionable, and strict liability gives the owner an incentive to consider whether the animal should be retained. Even if that retention is itself proper, an abnormally dangerous animal is by definition unusual; owning such an animal is an activity engaged in by a few that poses significant risks on others within the community. In these circumstances, strict liability is fairly imposed.
Restatement (Third) of Torts, 23 cmt. b (2010). Thus, [t]he owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be, unless the animal is of known vicious propensities or the owner should know of the vicious or unruly nature of the animal. Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. App. Houston [1st Dist.] 1980, no writ). Whether a dog has a vicious nature and whether the owner is aware of that nature is a question for the finder the jury to determine. See Pate v. Yeager, 552 S.W.2d 513, 516 (Tex.Civ.App. Corpus Christi 1977, writ ref d n.r.e.). Once an owner is aware of his dog’s propensity for viciousness he need not be negligent in order to be liable for the injuries caused when his dog bites a third party. See Bly v. Swafford, 199 S.W.2d 1015, 1016 (Tex.Civ.App. Dallas 1947, no writ) (an owner, whether negligent or not, knowing [his] dog is vicious, is liable for injuries to [a] person bitten by it.).
