Court Declaws "One Free Bite" Defense for Pet Owners

The Connecticut Supreme Court has expanded the potential liability of pet owners, ruling that a woman attacked by a neighbor's allegedly ferocious feline does not have to show that the animal had a past history of violence toward people.

Sally Allen of Bristol, Conn., was the first human victim of a cat named Baxter which bit her on the hand in March 2005 after fighting outside her home with her own cat. She sued Baxter's owner, Jessica Cox, for negligently allowing it to roam free.

“[W]hen a cat has a propensity to attack other cats, knowledge of that propensity may render the owner liable for injuries to people that foreseeably result from such behavior,” the Supreme Court said in a decision that effectively precludes the “one free bite” defense for Connecticut pet owners.

Baxter was not neutered and, according to a neighbor of both parties, Cox told her she “could not control” the cat if she kept it indoors and “she would let him out and leave the problem cat for everyone else to deal with.” The cat was covered with scars from fights, the neighbor testified, and “fought with ... any cat that ... came in the yard.”

Justice Barry R. Schaller, writing for the court, noted “a split in authority among other jurisdictions” over whether “a plaintiff must present evidence that the cat had a history of aggression toward other people to establish the existence of a duty of care to prevent personal injuries from a cat attack.”

But he followed common-law tort principles in reversing the summary dismissal of Allen's case. The Restatement (Second) of Torts, he said,

focuses on whether the harm was likely to result from a known behavior or propensity of the animal, and not on whether the particular type of harm previously had occurred. Although the Restatement (Second) states that knowledge of a tendency to attack other animals does not necessarily imply knowledge of a likelihood of harm to persons, it does not rule out such a conclusion if the harm to the person foreseeably results from a known behavior.

In 1914, the same court found a cat owner could not be liable for the mere trespass of a cat, noting that ‘‘[t]he cat’s disposition is kindly and docile, and by nature it is one of the most tame and harmless of all domestic animals.’’ Bischoff v. Cheney, 92 A. 660.

Under the specific circumstances of Allen's case, Schaller concluded, there is “a genuine issue of material fact as to whether the defendants knew or should have known that their cat’s vicious or mischievous propensities could lead it to injure a person.”

As a result of the ruling, owners are now on notice “that cats aren't entitled to the first bite anymore,” Allen's attorney said.

In another recent animal law case, the Michigan Court of Appeals ruled that a woman did not provoke trespassing dogs to attack her by defending her cats from them. “Dogs which are already in a provoked state cannot, by definition, become provoked,” the court said in allowing Kathy Koivisto's suit against a neighbor to proceed to trial.

By Matthew Heller
2/24/08