By Alyssa N. Chojnacki 

Wisconsin’s dog bite statute imposes strict liability against dog keepers/owners if their dog causes injury to another. Wisconsin Stat. § 174.02(1) states:

(1) Liability for injury. (a) Without notice. Subject to s. 895.045 and except as provided in s 895.57(4), the owner of a dog is liable for the full amount of damages caused by the dog injuring or causing injury to a person, domestic animal or property.

An owner is generally liable regardless of measures taken to prevent the harm. In addition, if the “bite” in question involved “sufficient force to break the skin and cause permanent physical scarring or disfigurement,” an owner who “was notified or knew that their dog previously injured or caused injury to a person, domestic animal or property,” will be strictly liable for two times the amount of damages at issue. Wis. Stat. § 174.02(1)(b). Given the strict liability standard imposed and the potential for quasi-punitive damages, dog bite cases can be difficult to defend.

Wisconsin courts have recognized two defenses to liability: public policy and comparative negligence. Under the former, public policy factors can be used to mitigate or eliminate the responsibility on the dog owner. Those factors are as follows:

(1) the injury is too remote from the negligence;

(2) the injury is wholly out of proportion to the culpability of the negligent tortfeasor;

(3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm;

(4) because allowance of recovery would place too unreasonable a burden on the negligent tortfeasor;

(5) because allowance of recovery would be too likely to open the way for fraudulent claims;

(6) allowance for recovery would enter a field that has no sensible or just stopping point.

Alwin v. State Farm Fire and Cas. Co., 2000 WI App 92, ¶ 12, 234 Wis. 2d 441, 610 N.W.2d 218. The existence of any one factor may be sufficient to preclude liability. The factors are applied on a case-to-case basis to determine if liability is appropriate for the dog owner. Id.

Where public policy factors are insufficient to preclude liability, the principles of comparative negligence can apply to mitigate if not eliminate liability exposure. More specifically, Wis. Stat. § 174.02 provides that even strict liability imposed against an owner may be reduced to the extent the alleged victim of the bite was comparatively negligent for their own injury. Where such comparative negligence exceeds 50 percent of the total causal share of liability, no recovery can be had by the injured party. Where such negligence is 50 percent or less, then any recovery will be reduced by the injured person’s percentage share of the causal liability.

Accordingly, developing evidence of the injured person’s own comparative negligence is the most effective tool for reducing or eliminating liability altogether. For example, it is rare for a dog to bite or otherwise injure another person without some provocation. If the injured party approached the dog in an aggressive manner, accidentally stepped on the dog, or undertook other actions to provoke the dog, their own conduct may make them more at fault for bringing about the harm.

While dog bite cases may be difficult to defend due to the strict liability construction of the statute, that does not mean an injured party is automatically entitled to full compensation. The unique factors of every situation and the actions of all parties involved must be thoroughly assessed to determine where liability truly lies.