Animal Control Law / Negligence Per Se

Are Leash Laws Strict Liability Statutes? - Egenreither v. Carter, 23 S.W.3d 641 (Mo.App. E.D. 2000)

Study guide - Egenreither v. Carter, 23 S.W.3d 641 (Mo.App. E.D. 2000)

This is a classic dog bite case that turns on whether there is strict liability for violating a leash law. Plaintiff, then thirteen years old, was walking home through the alley behind Defendant's home in the City of St. Louis. Plaintiff saw Defendant's son come out of the back yard into the alley through a gate in the chain link fence. Defendant's dog, Neno, a mixed breed of German Shepherd and Rotweiller, came through the gate shortly thereafter. When Plaintiff was five or six feet away from the gate, the dog jumped up and bit her on the arm. It is undisputed that Defendant was the owner of the dog at the time of the incident and that the dog was not on a leash. Plaintiff sued, alleging negligence per se. The court gave plaintiff a negligence per se instruction, but also allowed defendant a defense instruction on justification:

Your verdict must be for plaintiff, Melissa Egenreither, and against defendant, Sandra Carter, if you believe:

First, that Sandra Carter owned the dog in question, and

Second, that the dog owned by Sandra Carter was on property other than that owned by defendant, and

Third, that the dog owned by Sandra Carter was not restrained by a competent person, and

Fourth, as a direct result of such conduct, plaintiff, Melissa Egenreither, sustained damage.

Your verdict must be for defendant if you believe that Neno was at large on the streets of the City, or in any public place while not on a leash but defendant was not thereby negligent.

The jury found for the defendant and plaintiff requested a new trial, claiming that the court should not have given the justification instructions. The trial court granted plaintiff's request and the defendant appeals. The leash law in this case was very well drafted to support negligence per se claims because it spelled out that a specific purpose of the law was to prevent dog bites:

No owner of any dog shall permit such dog to be found at large on the streets of the City of St. Louis or in any public place or on another person's private property, unless such dog is on a leash, not longer than six feet in length and held by or under control of a responsible person so as to effectively prevent it from biting any person or animal. All dogs are prohibited from running or being at large unless under restraint as described above.

Key to this case, the statute does not have an exception - the dog has to be on a leash whenever it is off the owner's property. The defendant's appeal focused on the meaning of the word "permit" in the statute, arguing that it implied a conscious choice, and that since she was not home at the time, she had not "permitted" the dog to run free. The court resorted to the dictionary and found that permit also means "to give permission; to authorize; to allow by silent consent, or by not prohibiting . . .". Based on this meaning, the court found that there was no intent requirement in the statute. Since intent was not part of plaintiff's prima facie case, and because there were no statutory exceptions, defendant was not entitled to an instruction on justification without a showing of facts that would support the traditional exceptions to negligence per se. Thus, absent evidence that the violation was due to factors beyond the defendant's control, violation of the leash law results in strict liability. (Provocation was not an issue and was not addressed by the court.) For Missouri lawyers, the case raises questions about the adequacy of the standard approved instructions on negligence per se.