Eritano v. Commonwealth

NIGRO, Justice,

dissenting.

I respectfully dissent. The majority has established a rule which resurrects the common law “one bite” rule the Dangerous Dog Law was intended to replace. The majority finds that, for a dog to be declared dangerous, more than one incident of proscribed conduct must be proven. I dissent because I believe that this holding is contrary to the plain language and intent of the statute.

Under the common law “one bite” rule, a dog owner was not liable for his dog’s first bite or attack. The theory behind this rule was that the owner should not be held liable for the first incident in which his or her dog attacked because, until such an attack, the owner had no reason to believe that his dog might be dangerous. Andrews v. Smith, 324 Pa. 455, 188 A. 146 (1936); Deardorff v. Burger, 414 Pa.Super. 45, 606 A.2d 489 (1992).

However, the increase in the number of violent incidents involving dogs have prompted many states, including Pennsylvania, to enact dangerous dog laws. These laws provide methods for the confinement of animals and reduce the burden previously placed on injured parties to prove that an animal owner either knew or should have known of the animal’s *381propensity to injure people. See, e.g., Forsyth v. Dugger, 169 Ill.App.3d 362, 365, 119 Ill.Dec. 948, 950, 523 N.E.2d 704, 706 (1988), cert. denied, 122 Ill.2d 574, 125 Ill.Dec. 216, 530 N.E.2d 244 (1988).

The intent of the legislature is clear from the plain language of the statute. The Dangerous Dog section of the Dog Law provides:

(a) Determination. — Any person who has been attacked by a dog, or anyone on behalf of such person, a person whose domestic animal has been killed or injured without provocation, the State dog warden or the local police officer may make a complaint before a district justice, charging the owner or keeper of such a dog with harboring a dangerous dog. The determination of a dog as a dangerous dog shall be made by the district justice upon evidence of a dog’s history or propensity to attack without provocation based upon an incident in which the dog has done one or more of the following:
(1) Inflicted severe injury on a human being without
provocation on public or private property.
(2) Killed or inflicted severe injury on a domestic animal
without provocation while off the owner’s property.
(3) Attacked a human being without provocation.
(4) Been used in the commission of a crime.

3 P.S. § 459-502-A. (emphasis added)

The majority concludes that
the term ‘an incident’ refers to the event which brings the question of the dog’s dangerousness before the district justice, and the determination of dangerousness is to be made upon evidence of a history or propensity to attack. The incident giving rise to the filing of the complaint cannot alone establish the dog’s history or propensity to attack.

This interpretation does not comport with the language of the statute, which provides that the determination of whether a dog is a dangerous dog should be made “upon evidence of a dog’s history or propensity to attack ... based upon an incident ....” 3 P.S. § 459-502-A.

*382Moreover, the majority engages in an analysis of the meaning of the terms “history” and “propensity,” concluding that in order to demonstrate either one, proof must be offered of a continued pattern of behavior. This interpretation treats the term “propensity” as mere surplusage. Such an interpretation is contrary to the principles of statutory construction, which indicate that “whenever possible, each word in a statutory provision is to be given meaning and not to be treated as surplusage.” In re Employees of Student Services, 495 Pa. 42, 52, 432 A.2d 189, 195 (1981); Habecker v. Nationwide Ins. Co., 299 Pa.Super 463, 445 A.2d 1222 (1982). The term “propensity” has a meaning which is separate and distinct from that of the term “history.” While I agree that proof of history involves proof of a continued pattern of behavior, I would hold that proof of propensity can be established by evidence other than mere repetition of behavior.1

Thus, I agree with Judge Pelligrini’s dissent wherein he finds one incident sufficient to have a dog declared dangerous, even if it is the same incident which brings the question of the dog’s dangerousness before the district justice.

I agree with the majority’s finding that, in the present case, it was established that the dog attacked the child without provocation. However, I would hold that the lower courts erred in concluding that the requirements for declaring the dog dangerous were not met.

. For instance, evidence of a particular breed’s predilection for vicious behavior, when coupled with proof of the event which brings the question of the dog’s dangerousness before the district justice, might be sufficient to demonstrate a propensity to attack.