Wednesday, November 7, 2012

Livestock Guard Dog Exclusion from Dog Bite Liability Complicates Cyclist’s Lawsuit

Livestock guarding dogs are raised with sheep or other livestock, and become so attached to the herd that they protect the herd and its members, sometimes to the death when a predator, such as a mountain lion, is sufficiently dangerous.  They are raised with the herd animals they will protect, and are encouraged to prefer the company of those animals to that of people.  Unlike herding dogs, they are not servants of the shepherd, but rather of the sheep.  Playing with other dogs or people is discouraged, since the idea is for the dog to prefer being with the sheep as a member of the herd.  Obedience training is also discouraged because this increases the bond with the master.  They are generally large breeds capable of taking on predators, including Great Pyranees, Komondors, Tibetan Mastiffs, and others.  It has been argued that war dogs began as sheep guarding dogs. 

Great Pyrenees Puppy Being Raised to Guard Sheep (USDA photo)
Dogs brought up to guard livestock are often shy of people, and can be aggressive towards a person who comes near the herd.  Sometimes this leads to tragedy.

A Dog Attack in Colorado

On July 9, 2008, Renee Legro was in a bicycle race sponsored by the Vail Recreation District, which holds a number of such races every year.  While on a public road in the White River National Forest she was attacked by two predator control dogs owned by Samuel and Cheri Robinson.  The Robinsons had a permit, issued by the U.S. Forest Service, to graze sheep in the area that included the site of the attack.  The Vail Recreation District also had a permit to use the road where Legro was riding.  Legro sustained serious injuries and sued the Robinsons. 

Legro filed a claim under Colorado’s dog bite statute, which provides:

“A person … who suffers serious bodily injury or death from being bitten by a dog while lawfully on public or private property shall be entitled to bring a civil action to recover economic damages against the dog owner regardless of the viciousness or dangerous propensities of the dog or the dog owner's knowledge or lack of knowledge of the dog's viciousness or dangerous propensities.” Colorado Revised Statutes (CRS) 13-21-124

The Robinsons filed a motion for summary judgment, arguing that Legro’s claims were barred by Colorado’s Premises Liability Act, which provides in part:

“In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.”  CRS 13-21-115(2)

Subsection (3) of the Premises Liability Act restricts a landowner’s liability generally to a failure to exercise reasonable care to protect against or warn about dangers of which the landowner actually knew or should have known.

Predator Control Dog Exclusion

The Robinsons also argued that they could not be held liable even under the dog bite statute, CRS 13-21-124, because of a specific exception which provides:

“A dog owner shall not be liable to a person who suffers bodily injury, serious bodily injury, or death from being bitten by the dog: … (f) While the dog is working as a hunting dog, herding dog, farm or ranch dog, or predator control dog on the property of or under the control of the dog’s owner.”

The trial court granted the Robinsons’ motion for summary judgment, in large part because of the predator control dog exclusion of the dog bite statute.  Legro appealed. 

Appellate Decision

There was no factual dispute that the Robinsons’ dogs were predator control dogs.  The appellate court noted that the predator control dog exclusion applies to property owned by the dog owner, but also to property under the dog owner’s control, even if the property is not owned by the dog owner.  The court said that control must “mean, at a minimum, sufficient control over the property such that a dog owner has the right to exclude persons from the property.” 

The trial court had concluded that the Robinsons had a lease on the property where the attack occurred, but the appellate court said that “the record shows that the Robinsons operated under a nonexclusive permit to graze sheep.”  More specifically:

“[T]he attack occurred in the White River National Forest on land where both the Robinsons and Renee Legro were engaged in lawful activities, each pursuant to a U.S. Forest Service permit. We conclude that having a permit to graze sheep where the attack occurred does not establish the Robinsons' control of the property within the meaning of the exclusion.”

The area where the Robinsons grazed sheep was open to hikers, bikers, horseback riders, off-road vehicle users, and bicyclists.  The Robinsons could not even exclude a person from walking among or going near the flock of sheep. 

The Robinsons countered that their use of the property came with certain reporting responsibilities to the U.S. Forest Service, including reporting wild animals, such as wolves, and they had to pay taxes on their interest in the property.  Nevertheless, they could not exclude anyone from it. 

The court reversed the trial court’s grant of summary judgment as to the dog bite claim, and remanded for further proceedings. The case may now proceed to trial, though settlement is quite possible given the seriousness of the injuries. 

Insurance Company Offers to Settle

In a rare instance where settlement discussions are made public, the court noted that the Robinsons’ insurance adjuster had agreed to settle Legro’s claims for $643,500, but Legro had insisted on $1 million.  This came to light because when the trial court granted the Robinsons’ summary judgment motion, the offer was arguably still open.  Legro attempted to accept it by sending an email.  The appellate court found, however, that no agreement had actually been reached and the offer had effectively been revoked after the trial court’s decision. 

Criminal Conviction Leads to Fine and Community Service

A story carried by the High Country News says that in the same week that Legro was bitten, the dogs attacked at least one other biker.  The dogs were Great Pyrenees that the Robinsons euthanized after the incidents.

“Sam Robinson was convicted of unlawful ownership of a dangerous dog under a Colorado law previously applied only to urban pets. In October, he was sentenced to 200 hours of community service and a $500 fine plus restitution."

Ariana Brocius, the reporter covering the story for High Country News, continues: 

“At the same time, bears, mountain lions and coyotes are thriving, and with the loss of some traditional predator control options ranchers are relying more heavily on guard dogs for protection, says Bonnie Brown, executive director of the Colorado Woolgrowers Association…. The dogs are the most effective predator defense left, say ranchers and rangeland specialists, because they live with the herd, bark and chase off mostly nocturnal predators. In the past year without their dogs, the Robinsons lost 26 percent of their sheep, compared with 7 percent in an average year. And last summer's incident is probably not the last, warns fourth-generation sheep rancher Anthony Theos, president of the Colorado Woolgrowers Association. If Robinson's case sets a precedent, he says, ‘This could be the beginning of the end for us.’"

Great Pyrenees and Akbash Dog Guarding a Flock (USDA photo)
Brocius quotes Pettee and Eagle County Animal Services Director Natalie Duck as saying she receives a few complaints each summer, but notes that "the danger is there, particularly for mountain bikers, who, unlike hikers or ATV riders, appear suddenly and noiselessly and thus might seem particularly threatening to dogs, says Brown.”

Conclusion

Bikers and others should be warned that having races across privately-owned areas, even if not fenced in, may not so easily avoid the predator control dog exclusion.  Those setting up races like the one Legro participated in should make the effort to learn about any predator control dogs that might be guarding herds near which the race will be run.  Similarly, livestock owners that graze on public lands should be aware that overly aggressive livestock guarding dogs may become a civil, and as here, even a criminal liability. 

It is arguable that the U.S. Forest Service bears some responsibility, though probably not liability, here.  By allowing competing and sometimes conflicting uses of wilderness areas, the agency allows for the possibility of this kind of injury.  As the only party with full knowledge of the circumstances, it could have notified the Robinsons in advance that there might be cyclists coming near their herd, possibly avoiding the tragedy that resulted. 

It is a shame when such things happen.  Livestock guarding has been a function of dogs since near the beginning of domestication, and is mentioned in Homer (where dogs of a swineherd are only deterred from attacking Odysseus by his quick adoption of a submissive posture).  Although livestock-guarding dogs on large ranches may work best if not familiarized to people, those working near population centers or places with public access are sometimes best taught to accept the presence of people near the herd.  For an excellent account of how such dogs are trained, see Jay Lorenz and Lorna Coppinger, Raising and Training a Livestock-guarding Dog, Oregon State University Extension Service (May 2002) (with a helpful list of additional sources).

Legro v. Robinson, 2012 WL 5266059 (Colo.App. 2012)

Thanks to L.E. Papet, Hilary Phillips, and Leigh Anne Novak for suggestions and corrections.

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