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Clark v. Joiner2/18/2000
owledge requirement. Such a move would also eliminate an archaic rule which has often been unjustly applied.The majority in Hamilton, however, chose to retain the common law requirement that tort liability is predicated on proof of an owner's prior knowledge of an animal's proclivity to cause harm. Nevertheless, the authority supporting the "first bite" rule has been eroded through a recent line of cases. This court no longer requires that prior knowledge be established by "the first bite." For example, in Supan v. Griffin, although there was no evidence of a prior bite, this court found that a question of prior knowledge of a dog's tendency to attack humans was raised by the statement from the dog owner to a neighbor that the neighbor should "do whatever was necessary . . . to keep the dogs from attacking." We went on to find that " ith proof regarding [the dog owner's] prior knowledge of his dog's vicious tendencies, the true test of liability . . . is [the dog owner's] superior knowledge of his dog's temperament."
Because of these recent developments in the law, I believe that the majority should have expressly disavowed the "first bite" rule, insofar as that rule may require that an animal have previously caused identical harm before its owner can be said to have knowledge of its vicious or dangerous tendencies. However, based upon the current state of the law, I am constrained to concur in the result here. Although there is evidence that the dog bared its teeth and exhibited an aggressive posture towards an animal control officer, the record does not indicate that the incident was described to the Clarks, who were not home at the time, by the animal control officer in such a way as to put the Clarks on notice that the dog was vicious. Joiner points to no other evidence purporting to show the Clarks had prior knowledge of the dog's propensity to attack humans. Therefore, the trial court erred when it denied the Clarks' motion for summary judgment.
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