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Stroop v. Day6/1/1995
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However, other jurisdictions have determined that the defenses of contributory negligence, comparative negligence or comparative fault are consistent with their strict liability dog-bite statutes. See, e.g., Hayes v. McFarland (La. Ct. App. 1988), 535 So.2d 568; Howard v. Allstate Insurance Co. (La. 1988), 520 So.2d 715; Ambort v. Nowlin (Ark. 1986), 709 S.W.2d 407; Budai v. Teague (N.J. Super.L. 1986), 515 A.2d 822.
After reviewing these cases and the applicable statutory language, we hold that contributory negligence is not a defense to a claim brought under § 27-1-715, MCA. As previously stated, the only defenses provided within § 27-1-715, MCA, are that the dog was provoked or that the defendant was a trespasser. In Massey, the Arizona Supreme Court stated:
A.R.S. § 24-378 permits a person injured by a dog while at large to recover simply by proving that the statute has been violated. If the elements of the statute are satisfied, the legislature has decided to impose liability without fault. The only defense provided is provocation, A.R.S. § 24-523, with the common law defenses of contributory negligence and assumption of risk superseded.
Massey, 725 P.2d at 1100-01.
We find the reasoning of the Massey court persuasive. Section 27-1-715, MCA, provides that dog owners are liable for damages caused by their dogs, regardless of the owners'negligence. The statute lists two defenses. If the victim can establish that he or she was bitten by a dog and the dog's owner is unable to establish either of the enumerated defenses, the owner is liable. Ideas of comparative or contributory negligence are inapplicable under such a strict liability scheme.
In sum, we conclude that the District Court did not abuse its discretion in granting a new trial. However, we conclude that the District Court erred in denying Stroop's motion in limine for a ruling that contributory negligence does not apply to a claim brought under § 27-1-715, MCA.
We therefore affirm in part and reverse in part the decision of the District Court and remand for further proceedings consistent with this opinion.
JUSTICES GRAY, TRIEWEILER, HUNT, NELSON, WEBER and LEAPHART concur.
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