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A recent Tennessee
Court of Appeals decision dealt with an interesting dog bite case question. In Moore v. Gaut, 2015 WL 9584389 (Tenn. Ct. App. 2015) the plaintiff was bitten by the defendant’s Great Dane dog while the dog
was in the Defendant’s own fenced in back yard.
The plaintiff was actually on the other side of the fence when he approached
the dog. When he came close the dog bit the plaintiff on the face. The trial court dismissed the case on summary
judgment because there was no evidence that the dog had any prior propensity
for attacks and there was no evidence of any actual prior attacks.
The plaintiff appealed
this decision and argued that the large size of the Great Dane as well as the
breed of the dog should cause the dog to be characterized as part of a “suspect
class” of dogs. Further, that this, standing
along, is enough to establish a genuine material fact as to whether the
plaintiff should have known the dog had dangerous propensities. The Tennessee Court of Appeals was asked by
the plaintiff to extend T.C.A. § 44-8-413 (a 2007 dog bite statute
discussed below) and basically find that certain dogs are simply part of a
“suspect class” of dogs because of their size, weight, strength, and general
propensities.
The appellate court
noted that this argument by plaintiff is not found in prior Tennessee case law. The Court therefore declined to vary from the
well-established Tennessee rule in dog bite cases in Tennessee. The Court stated that “[f]or cases like this
one, where the dog caused injury
on its owner's property, the statute clearly retains and codifies the common
law requirement that a claimant establish that the dog's owner knew or should have known of the dog's dangerous propensities.” Gaut at 5.
As noted above the Tennessee
legislator adopted a new statute dealing with dog bit cases in 2007. This
statute had not been addressed by the Tennessee Court of Appeals until this
case.
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