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Victim of Dog Bite Contributed to Her Injuries

Posted in: Blog, Case Summaries // Written on behalf of Cuming & Gillespie
July 5, 2018

It is common knowledge that dogs are known as man’s best friend, but sometimes we need to be reminded that dog ownership is a very big responsibility. Dog owners must take care of their dogs and can be held liable for any damages resulting from a dog bite, especially when the dog bite results in bruises, abrasions, inflammation, eye injuries, fractures, puncture wounds, skull fractures, concussion, virus/bacterial transmission or even death.

In the recent decision (McKinlay v. Zachowby the Honourable Madam Justice D.A. Yungwirth (“Justice Yungwirth”), Jennifer McKinlay was claiming damages for injuries she suffered when she was bit by Clinton Arthur Zachow’s (“Zachow”) dog. Justice Yungwirth found that Zachow was liable in negligence for McKinlay’s injuries; however, she also found that McKinlay was 50% responsible for her own damages.

WHAT HAPPENED?

On June 7, 2011, Zachow was delivering water to Divine Spine Chiropractic, the workplace of McKinlay. Zachow’s dog, Junior, was in the front seat of his delivery van. He was neither leashed nor muzzled.

Junior was a mixed breed, commonly known as a pit bull. He was considered a “restricted dog” under the City of Edmonton Bylaw 13145, the Animal Licensing and Control Bylaw (“Bylaw”). Zachow admitted at trial that he was aware of both the Bylaw and the fact that his dog was regarded as a “restricted dog”.

Evidence given by both the plaintiff McKinlay and the defendant Zachow was conflicting as to whether McKinlay spoke to Zachow prior to approaching the dog. In any event, Justice Yungwirth relied upon the evidence of an independent witness. Justice Yungwirth considered the following set of facts:

  • McKinlay did not ask Zachow if she could pet the dog prior to approaching the dog;
  • McKinlay approached the dog with high energy;
  • McKinlay leaned into the van and petted the dog on his head, ears, and neck and got close to the dog’s face; and
  • McKinlay either kissed the dog or made kissing noises while she petted the dog.

McKinlay argued that the defendant should be found liable for damages under the doctrine of scienter and in negligence.

Scienter

According to the doctrine of scienter, the plaintiff (the individual bringing a case against another in a court of law) must establish the following:

  • The defendant (the individual, company or institution sued in a court of law) was the owner of the dog;
  • The dog manifested a propensity to cause the type of harm occasioned; and
  • The owner knew of the dog’s propensity to cause harm.

If these three elements are met, liability is absolute. In this case, Justice Yungwirth was not satisfied that the dog exhibited a propensity to cause harm.

Negligence

In order to succeed in an action based upon negligence, McKinlay must prove on a balance of probabilities the following:

  • That Zachow knew or ought to have known that his dog was likely to create a risk of injury to third parties; and
  • That Zachow failed to take reasonable care to prevent such an injury from occurring.

Justice Yungwirth acknowledged that Zachow knew his dog was a restricted dog and that under the Bylaw his dog needed to be leashed and muzzled when in public. Furthermore, Zachow opened the front passenger door and by doing so he put the dog in a position where it could get out of the van and interact with the public.  Therefore, it was reasonable to conclude that Zachow ought to have anticipated that an injury could result to any person who interacted with his dog.

Furthermore, Zachow took no steps to prevent the interaction between McKinlay and his dog by closing the door or stopping McKinlay from approaching his van. Therefore, Justice Yungwirth concluded that Zachow was liable in negligence for McKinlay’s injuries as McKinlay’s injuries were reasonably foreseeable in the circumstances and Zachow did not take reasonable care to avoid the harm.

DID MCKINLAY’S BEHAVIOUR CONTRIBUTE TO HER INJURIES?

Having heard all of the evidence, Justice Yungwirth found that McKinlay was contributorily negligent as her actions contributed to her injuries. McKinlay moved quickly with outstretched arms, she did not ask to pet the dog, she intruded into the dog’s space, and she either kissed or made kissing noises to the dog. Justice Yungwirth was of the opinion that McKinlay’s injuries were the result of the dog feeling threatened and snapping rather than an unmotivated attack on McKinlay’s face.  In conclusion, Justice Yungwirth found that Zachow and McKinlay were each 50% liable for the damages suffered.

Justice Yungwirth held that McKinlay’s injuries fell within the mid-range as she did not require any surgery or hospitalization and her scarring was limited to her lip. McKinlay’s damages were assessed as follows:

  • General damages $30,000;
  • Out of pocket expenses $6,017.18 and
  • Future care costs $10,000 for future care costs.

Given the findings on contributory negligence, Zachow was found to be responsible to pay McKinlay $23,008.54.

If you or a loved one have been the victim of a dog bite, the award winning and knowledgeable personal injury lawyers at Cuming & Gillespie Lawyers can help you or your loved one receive the compensation that you deserve. Contact our offices online or call 403-571-0555 to speak with one of our experienced personal injury lawyers today.

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