Cook v. Whitsell-Sherman

*279RUCKER, Justice,

concurring in part and dissenting in part.

I disagree with the majority's conclusion that Indiana Code section 15-5-12-1 imposes strict lability on the owners of dogs that bite letter carriers and other public servants. Although the General Assembly abrogated the common law in this area, there is nothing in the statute to suggest that it did so by making dog owners strictly Hable. Professor Prosser discussed the rationale for the imposition of strict liability against owners for injuries caused by dangerous animals. He explained that strict liability is appropriately placed:

[UJjJpon those who, even with proper care, expose the community to the risk of a very dangerous thing.... The kind of "dangerous animal" that will subject the keeper to strict Hability ... must pose some kind of an abnormal risk to the particular community where the animal is kept; hence, the keeper is engaged in an activity that subjects those in the vicinity, including those who come onto his property, to an abnormal risk. It is the exposing of others to an abnormal risk that is regarded as justifying strict lability.... Thus, strict Hability has been imposed on keepers of lions and tigers, bears, elephants, wolves, monkeys, and other animals. No member of such a species, however domesticated, can ever be regarded as safe, and liability does not rest upon any experience with the particular animal.

Prosser and Keeton on the Law of Torts § 76, at 541-42 (5th ed.1984) (footnotes omitted). The underlying premise is that the animal itself is inherently dangerous and thus safety lies only in keeping the animal secure. See, eg., Irvine v. Rare Feline Breeding Ctr., Inc., 685 N.E.2d 120, 125 (Ind.Ct.App.1997) (discussing the imposition of strict liability on owners of wild animals), trans. denied.

There is nothing inherently dangerous about a dog. Indeed, as the majority correctly points out, under our common law, all dogs regardless of breed or size, are presumed to be harmless domestic animals. Poznanski v. Horvath, 788 N.E.2d 1255, 1258 (Ind.2003); Ross v. Lowe, 619 N.E.2d 911, 914 (Ind.1993). Ordinarily this presumption is overcome by evidence of a known or dangerous propensity as shown by the specific acts of the particular animal. Posnanski, 788 N.E2d at 1258. However, even where the owner of a dog knows of the animal's dangerous propensity "Ithe] rules of liability are based upon negligence and not strict liability." Id. at 1259 (quoting Alfano v. Stutsman, 471 N.E.2d 1143, 1144 (Ind.Ct.App.1984)).

In this case the majority reasons the statute's language that an owner "may be held liable ... regardless of the former viciousness of such dog or the owner's knowledge of such viciousness," has the "net result" of imposing strict liability on dog owners when their dogs bite letter carriers and other public servants in the course of their duties Slip op. at 8-9 (emphasis added). In my view this is an overly expansive reading of the statute. Had the Legislature intended to impose strict liability, it would have done so by dictating that an owner "shall be held liable ... ete." Absent such language, I agree with my colleagues on the Court of Appeals that the statute removes the common law presumption that a dog is harmless in situations where an unprovoked dog bites a letter carrier or other public servant. In essence, the statute simply relieves the plaintiff of the burden of establishing a dog owner's knowledge of the dog's dangerous propensities. The plaintiff still has the burden of establishing that the dog owner failed to exercise reasonable care to prevent the dog from causing injury. On this point I therefore dissent. I *280concur in the remainder of the majority opinion.