Bikes Have Rights™
By James L. Pocrass, Esq.
Pocrass & De Los Reyes LLP
Recently, at the Los Angeles County Bicycle Coalition Open House, JJ Hoffman was telling me a story about her daily encounter with dog a couple of years ago. JJ said every day when she was riding to work she’d meet up with this same woman who was walking her dog unleashed.
Every day the dog took after JJ, which set the woman off who would run yelling behind her dog. It got so bad that JJ had the pepper spray out before she got to the street where she’d meet up with the dog. All that dog wanted, JJ said, was a taste of her calf.
JJ really didn’t want to spray the dog, though spraying the owner was tempting, and, luckily for everybody, JJ never actually had to take action.
Like JJ, I really like dogs. The dogs are doing what their instincts tell them to do: to chase prey. Irresponsible dog owners are another matter. They put the cyclist, the dog, and especially themselves in danger.
Bitten by a Dog
In California, if you are bitten by a dog, the owner is at fault. It doesn’t matter if the dog is leashed or not. It doesn’t matter if the owner knew or didn’t know that the dog had a “vicious nature.” California holds owners to “strict liability.” If you are bitten, the owner is liable for your injuries. There is no “free bite” in California.
Collision with or because of a Dog
When a dog begins chasing a cyclist, most cyclists tend to try to outrun the dog. When that happens, the dog’s brain goes into get-the-fleeing-prey mode, and the race is on.
Whether or not you can really outrun the dog, the real danger is in possibly colliding with the dog or colliding with something else because you lose control of the bike or you hit a pot hole or even getting hit by a motor vehicle when swerving or not being able to stop at a light or an intersection.
If you suffer serious personal injuries or your bike is damaged, again, the dog owner can be held liable. Your bicycle accident attorney should be able to obtain compensation for your injuries.
Compensation for Dog-related Collisions or Bites
The dog owner may be held negligent for:
- Ineffective control of the dog.
- Violation of the leash law and other Animal Control Ordinances.
- Inadequate supervision or management of the dog.
- Putting the dog in a condition in which the owner could have seen that the dog could cause injury to somebody.
Individual cities also may have their own animal control ordinances. For instance, one city limits the number of dogs that can be walked by one person at a time and a number of cities consider it a misdemeanor if a dog is tied to a parking meter, sign or bus bench without food or water nearby.
Some cities have ordinances specific to a breed. In Santa Monica a pit bull on public property must be muzzled.
The dog owner may be held responsible for compensating you for:
- Medical bills from doctors, emergency rooms, hospitals, therapists, plastic surgeons, and for prescriptions.
- Future medical bills to remove scars or to repair disfigurements. If the money for medical care is not recovered at this time, your health insurance might not cover any future medical procedures you need later, calling them “cosmetic.”
- Time you had to take off from work resulting in lost income.
- Lost future earnings because of disfigurement or disabilities.
- Emotional counseling.
- Pain and suffering.
Of course you can only recover compensation for injuries you suffer and care you actually need.
Hesitations to Holding an Owner Liable
One of the major hesitations a cyclist who is bitten by a dog often has in reporting a dog bite is the fear that the dog will be destroyed. A dog that has no history of biting is rarely “put down.”
The court takes into account the severity of the bite and the number of times it has bitten. It may rule that a dog must be muzzled in public or restrained in a particular way, such as kept behind a certain type of fence of a certain height.
We all have heard that we have the right to defend ourselves against an attack from another person. What few people realize is that the law says you can defend yourself as much as is necessary to foil the attack. Your defense must be proportionate to the attack, and when the danger is past, so is your right to defend yourself.
This is a common law concept, and there is no explicit statement in common law that this also applies in a dog attack. More and more dog owners are counter-suing for compensation when their dog has been injured either intentionally or through someone else’s negligence.
So if you are going to use self defense, be sure that it is proportionate to the attack and that once the attack is over you stop, similar to how you would defend yourself with a human. That is a legally defensible act, though you could still find yourself in a lawsuit with the dog owner.
Personally, I subscribe to the belief that it’s rare to find a bad dog, but bad owners are much too plentiful.