In the recent case of Evans v Berry, 2024 BCCA 103, the Court of Appeal for British Columbia upheld the trial judge’s decision finding no liability on the owners of a dog who bit the plaintiff/appellant while attending the dog owners’ home for a dinner party.
Facts
On November 11, 2017, Ms. Evans (the “Appellant”) was bitten on her face by Bones, a dog owned by Ms. Berry and Ms. Anderson (the “Respondents”). Bones was a three-legged rescue dog from Thailand. He was a medium sized, mixed breed dog and weighed about thirty pounds.
The Appellant testified that as she was leaving the Respondents’ apartment, she kneeled down to pet Bones, who was lying on the floor. Bones rolled over onto his back and she was petting his belly. She testified that Bones suddenly jumped straight at her face, biting her cheek and forehead (the “Incident”). The Appellant sustained a three-inch laceration to her forehead and a two-inch laceration to the left side of her face, requiring stitches.
The Appellant’s claim was grounded in scienter, negligence and occupiers’ liability.
Scienter
Under the doctrine of scienter, domesticated animals are presumed harmless. A finding of liability requires proof that the pet owner knew that their pet had the propensity to cause the type of harm that it did to the plaintiff. To prove scienter, a plaintiff must establish that:
- 1. the defendant was the owner of the dog;
- 2. the dog had manifested a propensity to cause the type of harm occasioned; and
- 3. the owner knew of that propensity.
1. Were the Respondents the owners of the dog?
There was no dispute that the Respondents were Bones’ owners, meeting the first element of the test.
2. Was there a manifested propensity to cause the type of harm occasioned?
The Respondents adopted Bones in the spring of 2017, about seven months prior to the Incident. The Respondents’ had observed that Bones had some behavioural issues, including “nipping” the ankles of three of their friends. The Respondents agreed that “nipping” meant that Bones had opened his jaw and latched on to a person’s leg or ankle without leaving a mark or drawing blood.
Approximately one month prior to the Incident, Bones bit Ms. Berry’s father on the arm while Ms. Berry was passing her father a sandwich. The trail judge found that Bones did not deliberately bite Ms. Berry’s father even though the bite drew blood. As a result, the trial judge accepted that this bite did not establish that Bones was a source of danger or that he had manifested a propensity to bite or cause harm.
Bones also had difficulty with other dogs, including growling and nipping dogs at the dog park, and on one occasion, biting the ear of another dog and drawing blood. In response to Bones’ behavioural issues, the Respondents took him to seven or eight dog training sessions.
Overall, the trial judge found that Bones exhibited nipping behaviours at the ankles and legs of humans, and exhibited some instances of aggression towards other dogs. Notwithstanding this finding of fact, the trial judge was unable to conclude that Bones had manifested a propensity to cause harm of the type occasioned on the night of the Incident, observing that the evidence did not establish that Bones had the requisite propensity, inclination, trait or habit.
The Court of Appeal found that the trial judge’s findings of fact with respect to Bones’ behaviour were entitled to deference.
3. Did the Respondents know of the propensity?
The trial judge confirmed that the Respondents were not aware that Bones had any such propensity. Bones’ dog trainers did not recommend that Bones wear a muzzle, and his nipping had improved after dog training.
As a result, the trial judge found that the Appellant had failed to establish the second and third elements to establish scienter.
Negligence
The trial judge found that the Respondents’ had acted prudently when they first adopted Bones by having him examined by a veterinarian and by attempting to resolve his behavioural issues through dog training.
The trial judge found that Bones’ actions on the night of the Incident were “out of character, unexpected and contrary to his usual habits.” As a result, the Respondents’ did not fail to take reasonable care to prevent Ms. Evans’ injury and did not breach the standard of care. This finding was sufficient to dispose of the Appellant’s occupiers’ liability claim, as well.
The Court of Appeal upheld the trial judge’s findings with respect to negligence and occupiers’ liability.
Conclusion
The Court of Appeal dismissed the appeal, finding that the trial judge had not erred.
This decision is a sound reminder that dog owners have an obligation to take reasonable care to ensure that their dog does not cause harm to others.