29ASR2d123

Series: 29ASR2d | Year: () | 29ASR2d123
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[29ASR2d123]

 

PENINA GATES, a minor, by and through her

Guardian ad litem, UESA V. GATES, Plaintiff

 

v.

 

PHILLIP and

KATIE GEBAUER, Defendants

 

High Court of American Samoa

Trial Division

 

CA No. 206-94

 

December 7, 1995

 

[1]  Harboring an animal or exercising

apparent ownership is enough to create liability for an injury caused by that

animal.

 

[2]  Where a dog bites a person, the owner

will be presumed to be at fault.  This

presumption, however, can be overcome by an affirmative showing on the part of

the defendant that the harm was caused by the fault of the plaintiff, the fault

of a third person for whom the defendant is not responsible, or by an

independent cause.

 

[3]  The owner of an animal is under a

legal obligation to keep the animal under his control and to guard innocent

parties from harm by the animal.[29ASR2d124]

 

Before RICHMOND, Associate

Justice, LOGOAI, Associate Judge, and SAGAPOLUTELE, Associate Judge.

 

Counsel:    For

Plaintiff, Reginald E. Gates

                   For

Defendants, Katopau T Ainu`u

 

Opinion and Order:

 

I.  INTRODUCTION

         

In December 1993, defendants Phillip and

Katie Gebauer lived in the Village of Vaitogi.  Plaintiff Penina

Gates was also then a resident of Vaitogi and was a

neighbor of the Gebauers.  According to witnesses, the Gebauers had two dogs residing on their driveway and in

their yard.  The Gebauers

admit to feeding these dogs, but deny "owning" them.  The dogs would bark at people walking past

the Gebauer residence, and would often bolt from the

yard to chase people.

         

On December

24, 1993, Penina was riding her bicycle

on the public road in front of the Gebauers

residence when the dogs chased her.  One

bit her right leg.  Penina

brought her mother to the house and pointed out the dog which had bitten

her.  At that time, Katie Gebauer apparently told Penina

and her mother that she owned the dog. 

Later, Katie Gebauer took the dog to the

veterinarian to have it checked for rabies or other communicable diseases.  The dog continued living in the Gebauers‘ yard for at least nine months after the incident.

 

II.  DISCUSSION

 

A. 

Ownership of the Dog

         

[1]  The Gebauers‘ defense rests primarily upon their claim that

they do not own the dog which bit Penina.  Ownership of an animal, insofar as it creates

liability for an injury caused by that animal, is not defined by a set of

well-established criteria.  However, a

number of courts have said that "harboring" an animal or exercising

"apparent ownership" is enough to create liability.  See, e.g., Thompson

v. Sicard, 385 So. 2d 334, 335 (La. App.

1980) (stating that an animal is "owned" by a person with actual or

constructive control over the animal or who harbors it); Hornbein

v. Blanchard, 35 P. 187 (Colo. App. 1893) ("Keeping [the dog] upon the

premises . . . was sufficient to fix liability."); Shultz v. Griffith,

72 N.W. 445, 446 (Iowa 1897) (stating that the word "owner" in the

dog-bite statute includes anyone who has a dog in his possession and harbors it

on his premises).[29ASR2d125]

         

Under these standards, the Gebauers are the "owners" of the dog.  They allowed it to live on their property,

apparently making no effort to remove it. 

They continued to allow it to live there for over nine months after Penina was bit.  They

also fed the dog, and on at least one occasion, Katie Gebauer

admitted that she was the dog’s owner. 

She took the dog to the veterinarian after it had bitten Penina.  We find that

the Gebauers were the dog’s owners, at least insofar

as fixing liability for its biting Penina.

 

B. 

Standard of Care

         

[2]  While some jurisdictions

apply strict liability to dog-bite cases, others rely on a negligence

theory.  We believe the proper standard

is somewhere in between.  Where a dog

bites a person, the owner will be presumed to be at fault.  Cf. Holland v. Buckley, 305 So. 2d 113, 119 (La.

1974).  This presumption, however,

can be overcome by an affirmative showing on the part of the defendant that the

harm was caused by the fault of the plaintiff, the fault of a third person for

whom the defendant is not responsible, or by an independent cause.  Cf. id. 

         

[3] 

The presumption that the owner is at fault is particularly strong

where, as here, the dog bit a person on public property, the owner having taken

no steps to maintain control over the animal, instead allowing it to run free.  The owner of an animal is under a legal

obligation to keep the animal under his control and to guard innocent parties

from harm by the animal.  Id.  Failure to do so entitles the injured party

to recover from the animal’s owner.

         

Thus, the Gebauers

are liable to Penina for the injuries caused by their

dog.

 

C. 

Damages

         

Penina has asked for a

total of $6,200 in damages:  $5,000 for

pain and suffering at various times, $400 for medical expenses, and $800 for

disfigurement.  However, Penina has not proven the full extent of the requested

damages, her injuries were relatively minor, and they have healed.  She is entitled to $1,000 for the aggregate

of her claims.

         

It is so ordered.