Protecting the rights of those who ride...
P: 513-484-BIKE (2453)    E:

Dogs & Cyclists – With Friends Like These…

By: Steve Magas, April 30, 2010

BIKE LAW 101
DOGS:  WITH FRIENDS LIKE THESE…
By Steven M. Magas, The Bike Lawyer[1]

Dogs are said to be man’s best friend,
I’ll grant you all that much…
It’s just hard for me to call him “Pal”
While he has my calf for lunch!

Screen shot 2010-04-30 at 8.35.53 AM

I love dogs… I’ve got two very loveable mutts which together constitute roughly 160 pounds of sniffing, drooling, chewing, running, barking energy. Dogs are great. Dogs are fun. Dogs are … well, you know.   However, dogs continue to be a huge problem for Ohio cyclists, particularly in our rapidly changing “rural” counties.

What are Ohio’s “dog laws?”  Is there a state-wide “leash law?”  What is the so-called “One Bite Rule?”Who do you complain to about dog problems?   How far can you go to protect yourself if you are attacked by a dog while riding your bike?   What can your local club do help to protect ALL riders?  What are your rights if you get hurt?  Should you get a lawyer to help you?? [You might at least GUESS the answer to the last question…]

OHIO‘S DOG LAWS

Ohio Chapter 955 of the Ohio Revised Code is aptly titled, “DOGS.”  Most of the statewide statutes governing dogs in Ohio are covered here, or in the case law that has developed when courts try to interpret those laws.
EVERY dog in the State of Ohio that is “more than three months of age” must be registered in the county in which the dog is kept, owned or harbored.  Tags are to be issued and must be worn.  Failure to buy the tag or have the dog wear it renders the dog subject to “impoundment, sale or destruction” and can lead to a fine of up to $75 in some counties.
There is no statewide “leash law” in Ohio, per se. However, Ohio law does state as follows with regard to the owner’s obligation to control the dog:

(C) Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following:

(1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or secure enclosure to prevent escape;

(2) Keep the dog under the reasonable control of some person.

That word, “supervision” is tough.  If the dog is running amuck and someone is watching the dog run amuck, is the “supervision” test met?  I think not.  Clearly, the aim of the statute is to confine and restrain the dog from causing injury or damage.  All of the other items on the list provide a definite limitation of movement – leash, tether, fence, enclosure – and the purpose of the list is to “prevent escape.”

There are two very special types of dogs defined in the code which are of GREAT interest riders – “dangerous dogs” and “vicious dogs.”

A “dangerous dog” is one that has

“. . . chased or approached in either a menacing fashion or an apparent attitude of attack, or has attempted to bite or otherwise endanger any person, while that dog is off the premises of its owner, keeper, or harborer and not under the reasonable control of its owner, keeper, harborer, or some other responsible person, or not physically restrained or confined in a locked pen which has a top, locked fenced yard, or other locked enclosure which has a top. . .”

A “vicious” dog is a dog that:

4)(a) ***  without provocation and subject to division (A)(4)(b) of this section, meets any of the following:

(i) Has killed or caused serious injury to any person;

(ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog.

(iii) Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.

Compare the language used to define “dangerous” and “vicious” dogs.  Dogs can be labeled “dangerous” if they simply look mean or attempt to bite or “otherwise endanger” any person.  I would certainly argue that dogs which come after bicycles are “endangering” the rider and are “dangerous” dogs.  “Vicious” dogs on the other hand are dogs that have hurt someone.

These statutory provisions provide an opening for you and your local club to help protect ALL RIDERS in the event of a dog attack.  Once a dog is considered “dangerous” or “vicious” the owner is mandated to secure suitable insurance to protect the public from the dog.

Can you protect yourself from an aggressive dog?

Every rider should have a “Dog Plan” in place BEFORE they ride.  What will you do if you encounter a dog?  Do you have something to squirt at the dog?  Do you have a noisemaker, such as one of those compressed air horns which make a huge blast of noise?  Maybe you have a “Dazer” or similar device that will electronically stun the dog?

Whatever your plan, give it some thought and have it in place before you leave the house.  You WILL encounter a dog at some point, so be ready.

You are permitted by law to protect yourself in the event of an encounter with an aggressive dog.  O.R.C. §955.28 is very tough on aggressive dogs.  The statute states that if a dog is “…chasing or approaching in a menacing fashion or apparent attitude of attack, that attempts to bite or otherwise endanger, or that kills or injures a person or a dog that chases, threatens, harasses, injures, or kills livestock, poultry, other domestic animal, or other animal…”  that dog can be killed during the encounter and the person cannot be prosecuted for cruelty to animals.

What should you do if you have an encounter with a dog while riding your bike on the roadway?

First, of course, get yourself safe.  Call 911 and get medical care to the scene.  Do NOT let anyone talk you out of that.  In my experience handling these cases, more people are injured from a fall caused by a dog than an actual bite.  Get yourself taken care of right away. Injuries can be unseen and significant!

Second, notify the owner of the attack immediately.  Get the name, address, telephone, email and any other available contact information.  Write it down.  Send it to yourself in a text message, voicemail or email. Take a cell phone picture of the dog owner’s house.  The address marker.  The yard.  The area where the crash/attack occurred.  Try to talk to the owner.  GET THE DOG OWNER’S INSURANCE INFORMATION.  Dog attacks are typically covered by a homeowner’s policy.

Third, take a picture of the dog with your phone, preferably while the dog is still in the road or in the yard of the owner.  Do what you can to get a photo.  If you can’t get a picture, make notes about the dog.  Breed. Color. Size. Anything special. Again, write it down.  Text it to yourself.  Do it immediately, not a week or two later.  A frequent defense to dog cases is “MY DOG DIDN’T DO IT.”  You may have to PROVE it some day and as soon as you leave the scene, any chance of getting that immediate evidence is gone.

Next, get the dog warden involved RIGHT AWAY when you find a dangerous or vicious dog.  If an incident occurs on a ride, report it right away.  [Your cell phone is really an important tool on your ride, eh?]  Get it out and call the dog warden.  [What? You don’t have his/her number?  Take a minute RIGHT NOW to look it up and put it in your cell phone.]  The Dog Warden is a typically a COUNTY official.  Find out if there have been any prior complaints about the dog.

Follow up your phone call with a letter to the Dog Warden outlining what happened. ASK THE WARDEN TO DECLARE THE DOG DANGEROUS OR VICIOUS, if your situation meets the definitions.  Put pressure on the dog warden to act.  Continue to follow up with the Dog Warden.  While most take their jobs very seriously, I have found situations [particularly in rural counties where they are used to dogs having a free reign] in which the Dog Warden has been slow to act.  There are statutes which define his/her duties which can be used to agitate him/her into action if necessary.

Follow up with a letter to the dog’s owner.  If you didn’t get the owner’s name at the scene, learn how to determine from county records who owns the property where the dog came from.  Send a letter, certified, to the owner advising the owner that the dog is dangerous or vicious [depending on your facts].  If you were injured, advise the owner that you’ve been injured and that you plan on filing a claim with his/her homeowner’s insurance.  Tell the owner to contact his/her insurance agent and to have a claims representative call you and be ready to discuss how the incident occurred and the nature and extent of your injuries.

Your CLUB can get involved too.  How?

By posting Ride Reports of dog attacks.  These serve two very important purposes.  First, they warn riders of potentially dangerous dogs.  Second, they provide some measure of PROOF of a dog’s vicious or aggressive tendencies and make it difficult for an owner to contend that Fido has never EVER chased a cyclist before.   If the Club then follows through and sends its OWN letter to the owner, which is kept on file or posted on the webpage, then even more proof of the dog’s aggression is set forth.  The Club’s letter should put the owner on notice that it has received a report from one of its riders that the owner’s dog left the property and was aggressive towards the riders, or caused a crash, or whatever… the mailing of such a letter, via certified mail, again puts the owner on notice and may cause him to chain up the dog before he gets sued!

What if you are INJURED by the dog?  What are your rights?

Ohio has one of the very best “dog laws” in the country.  Section 955.28 of the Revised Code imposes liability on the dog’s “owner, keeper or harborer” for “damages for any injury, death, or loss to person or property that is caused by the dog…”  The only exceptions to liability are if the person who suffers injury was committing a criminal offense on the owner’s property, was committing or attempting to commit an offense against any person or was “teasing, tormenting or abusing” the dog on the owner’s property.

The bottom line – if a dog comes OFF the owner’s property and causes a bike crash, the cyclist WINS, even if the dog was just trying play and seems genuinely upset that you crashed during the game of “Catch The Cyclist!!”

STRICT/ABSOLUTE LIABILITY

In most “tort” cases you have to prove that the other guy was “negligent” or guilty of some level of culpability in order to win.  Not so for dog owners.  One Ohio Supreme Court case described a dog owner’s culpability as “absolute liability.”  This means that it doesn’t matter if the dog’s owner took every possible precaution, used the best fence and the strongest leash or chain. If the dog leaves the property and causes damage to passing cyclist, the dog’s owner is liable.

Note that there is NO requirement in the law that dog actually BITE the person.  The law permits recovery for ANY and ALL damages. If a playful dog comes out of its yard and chases a  cyclist, who then crashes, the owner is liable – even if the dog was never aggressive and even if the dog comes up and licks the cyclists hand, dials 911 with its nose and barks for help!!

In some states, there is a “one bite rule” which means the owner is not liable until the dog actually bites someone or acts aggressively.  Not so in Ohio, although evidence of aggression can open the door to more damages known as “punitive damages.”  Once a dog owner is aware that the dog can be aggressive the burden to protect the public is even stronger and the owner can be “punished” by the imposition of “punitive damages” on top of any compensatory damages.

How do you HANDLE a claim like this?  Do you need a lawyer?

Short answer, YES.

Of course, I’m a “bike lawyer” who has handled 200+ “bike cases” and some 50 or more “dog cases” so a cynical reader might think I would automatically say YES.  However, “dog cases” can be tricky.  Adjustors might try to tell you that certain defenses apply to limit or deny your claim, when such is not the case.  You may not be in the best position to evaluate the value of your claim.  Indeed, in many cases, I end up getting involved because the dog’s owner simply refuses to answer the door or phone or otherwise respond to the injured victim’s request for help.

What does a lawyer do in such a claim?

First, we investigate the crash.  I gather ALL information, talk to all witnesses, get the police report, dog warden records, photographs and such to clearly and undeniably establish the owner is liable.  I contact the owner and get the homeowner’s insurer involved.  I track your recovery, gather ALL of your medical records, medical bills, wage loss documentation and out of pocket expenses.  I handle all communications with the owner, insurer, dog warden, county, and courts, if needed.  Usually, dog cases settle without a lawsuit because the law is so strong.

Probably the most important thing I do is organize all of this data, review it top to bottom and give you my very best professional opinion of what your case is “worth”, based on handling hundreds and hundreds of injury and death cases, 200+ “bike cases” and 50+ “dog cases.”   I present the legal, medical, forensic and engineering data about your case to the insurer in a package designed to maximize your recovery.  I handle all negotiations and, usually, get the case settled without the need for any litigation.

So, there you go… a short course in Dog Law 101!

GOOD LUCK AND GOOD RIDING!
Steve Magas, The Bike Lawyer

Get articles like this sent straight to your inbox for free:
Subscribe Via RSS Now!

[1] Steve Magas, The Bike Lawyer, is an avid cyclist and Ohio trial lawyer who has “…protected the rights of those who ride…” for more than 27 years.  Steve recently opened his own firm, The Magas Firm, and has created a unique niche in the world of “Bike Law.”  Steve has handled more than 200 “bike cases” including crashes caused by errant motorists, dogs,  and defective products.  Steve is a strong advocate for cycling, and represented Steve Selz pro bono in Trotwood v. Selz, securing an important victory for all Ohio cyclists.  Steve offers a FREE CONSULTATION to discuss your cycling or other legal issues and can be reached at 513-484-BIKE [2453] or at BikeLawyer@aol.com. His Bike Law practice is featured at www.MagasLaw.com and www.OhioBikeLawyer.com.

Printed from: http://www.ohiobikelawyer.com/bike-law-101/2010/04/dogs-cyclists-with-friends-like-these/ .
© 2014.

1 Comment   »

  • Steve Garufi says:

    Thank you Steve. This is a very good article. I had a couple of very unnerving incidents with dogs in Arkansas and Mississippi when I biked across America three years ago. After those incidents, I always carry pepper spray with me, although I like the idea of a dog taser as well.

Trackbacks/Pingbacks

  1. Commentary on Ohio Dog law by Steve Magus well known (cycling attorney) | JUSTICE FOR MICHAEL HART
  2. Dogs

RSS feed for comments on this post , TrackBack URI

Leave a Reply