BIKE LAW 101
DOGS: WITH FRIENDS LIKE THESE…
By Steven M. Magas, The Bikelawyer
Ohio Bike Lawyer – Steve Magas
A DOG POEM
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!
I love dogs… I’ve got a wonderful pup who is roughly 40 pounds of sniffing, drooling, chewing, running, barking energy. 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? Can you protect yourself from an aggressive dog?
DO YOU HAVE A DOG PLAN?
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 or you just plan on whacking the dog with your high end pump?
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.
OHIO’S DOG LAW
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?
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. The most frequent defense [and practically the ONLY defense] to dog cases is “WASN’T MY DOG – MY DOG DIDN’T DO IT.” You will likely have to PROVE what happened some day & prove WHICH dog it was to a cynical insurance adjustor or judge or jury – and as soon as you leave the scene, any chance of getting that immediate evidence is likely gone.
In one particular case, which happened way out in the country at the top of a long hill climb, the cyclist said the dogs were out on the roadway. The Google Earth Street Scene photo shows those very same dogs running free. Pretty easy to prove that case… in fact, MOST dog cases involving cyclists are easy to prove because the cyclist is ON THE ROAD, not on the owner’s property, so none of the defenses apply.
In another case, the landowner simply ignored the law and thought putting up a sign would protect them from liability… [Narrator: IT DIDN’T]
Getting the county dog warden involved RIGHT AWAY when you find a dangerous or vicious dog is important. 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.
In Ohio each county is mandated to have a Dog Warden. The Dog Warden is a COUNTY official who is required by statute to carry out certain duties like keeping a record of all dogs, patrolling and impounding loose dogs, responding to complaints about dogs, and more. We can find out from the Dog Warden 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. The statute, ORC 955.22, is lengthy and somewhat complicated. You can read it here. Even the definitions of what constitutes a “dangerous dog” or “vicious dog” or “nuisance dog” can be intimidating. You can read those here. The law requires a hearing in Municipal Court on whether the facts of your case rise to the level of having an animal pigeonholed into the Dangerous, Vicious or Nuisance categories – You can read that here
–> HIRE COUNSEL ASAP
Getting the dog reported doesn’t do ANYTHING to help you obtain money for your claim. Hiring counsel that KNOWS Dog cases is often needed. Once we’re involved we will Follow up with a letter to the dog’s owner. If you didn’t get the owner’s name at the scene, we can try to determine from county records who owns the property where the dog came from. If you reported to the Dog Warden then the name/address should be in the report. We will be advising the owner that the dog is dangerous or vicious [depending on your facts]. If you were injured, we advise the owner that we will be on filing a claim with his/her homeowner’s insurance. We want the owner to contact his/her insurance agent.
What if you are INJURED by the dog? What are your rights?
IF you are moving forward at Bike Speed and are interrupted suddenly when a dog gets in the way, or grabs your shoe or calf, bad things can happen quickly. For cyclists injured by dogs we often see fractures – clavicle, arm, wrist…
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!
Dog owners are funny sometimes… they don’t want to notify the insurer – they want to fight over whether their dog was “at fault” or whether YOU INJURED THE DOG. They don’t understand what “strict liability” means… i.e., the dog left the property & caused a crash on the road…the owner is LIABLE PERIOD THE END>>> It doesn’t matter whether the owner was “negligent” or not – you can have the best lock and fence and electric gizmos…if the dog gets out, the owner is liable.
Once an insurer is involved we have a great track record in getting these resolved fairly. But, sometimes we have to file a lawsuit to get the dog owner’s attention. This is unfortunate because it adds time and expense to the claim but if the dog owner won’t provide insurance info it may be the only option.
In one such case a few years ago up in a small town in northwest Ohio the dog owner not only refused to tell us who the insurer was even after we sued him but he FILED A COUNTERCLAIM against the cyclist for vet bills after the cyclist slammed into the dog on the road! In that case the Judge ordered the defendant to appear in court and read him the Riot Act – an insurer was subsequently notified – the counterclaim was dropped by the attorney retained by the insurer – and the claim was resolved.
In most “tort” cases you often have to prove that the other person 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 injured person. The law permits recovery for ANY and ALL damages “caused” by the dog. If a playful dog comes out of its yard to chase a ball and causes a cyclist to crash, 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.
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 and the Dog Warden, 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!