Over the last several years a growing trend has emerged of allowing employees to bring their pets, typically dogs, to work. Some employers even use this benefit to attract new employees. However, this has the potential to open the employer up to a suit if the employee’s dog bites an individual while the employee is at work. This article discusses the variety of claims that may be brought in these circumstances, the merits of bringing such claims, and some useful ideas for employers to consider when contemplating such a policy.
There are four claims that a typical Plaintiff may seek to assert, two common law claims and two statutory claims. The two common law claims are Negligence and Vicarious Liability (also known as Respondeat Superior). Negligence is the failure to act as a reasonably careful person would under similar circumstances to protect others from injury. Vicarious Liability is an employer’s liability for any of its employee’s negligent acts within the course and scope of employment. These claims exist as part of the judge-made case law that pre-exists the statutory claims.
The two statutory claims are pursuant to C.R.S. § 13-21-115 – the Colorado Premises Liability Act (“CPLA”) and C.R.S. §13-21-124 – the Dog Bite Statute. The Colorado Premises Liability Act was passed in the 1980s and pre-empts any common law claims against a landowner in Colorado for physical injuries occurring on the landowner’s property. This means a plaintiff cannot pursue common law claims, such as Negligence or Vicarious Liability, for allegations that factually would give rise to a claim under the CPLA.
The CPLA applies broadly to anyone who is a “landowner” as defined in the statute. A plaintiff may recover both economic and non-economic damages under the CPLA. “Landowner” includes not only the titled owner but anyone who exercises a sufficient degree of control over the circumstances or activities taking place on the real property where the alleged injury occurred. The duties owed by a landowner depend on the status of the injured plaintiff – specifically, whether the plaintiff was a trespasser, licensee, or invitee. Invitees are those who enter the property to transact business with the landowner. Landowners owe the highest duty to invitees: they must use reasonable care to guard against dangerous conditions of which they knew or should have known. Thus, actual or constructive knowledge of the dangerous condition will suffice. To avoid potential liability under the statute, it is important that the employer ask questions about the dog’s behavior history prior to allowing it to come to work and have a policy for preventing a dog from returning to the premises upon any showing of aggression.
The Dog Bite Statute was passed in 2004 and has been interpreted by the Colorado Court of Appeals in a manner that allows claims to be brought under both statutes. A plaintiff may recover economic damages under the Dog Bite Statute and all other damages under the CPLA. To recover under the Dog Bite Statute, a plaintiff must establish that he suffered serious bodily injury from being bitten by a dog while lawfully on the employer’s property and that the employer was the owner of that dog as defined by the statute. This award of economic damages is made regardless of the owner’s knowledge of the dog’s viciousness or dangerous propensities. An employer would be exempted from liability under this statute if it can show that a plaintiff knowingly provoked the dog. Serious bodily injury is defined as “bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.” A dog owner is defined as “a person, firm, corporation, or organization owning, possessing, harboring, keeping, having a financial or property interest in, or having control or custody of, a dog.” Thus, to avoid liability under this statute, it is helpful for an employer to demonstrate that it has no possessory interest in the dog, did not care for or tend to the dog when the employee was not present, and expected the employee to individually maintain control of the dog at all times. The further an employer’s arrangement looks from that of a dog kennel or daycare, the less it is likely it will be considered an owner under the Dog Bite Statute.
In summary, while a plaintiff may bring a variety of claims against an employer for an employee’s dog biting the Plaintiff, two statutes will ultimately govern the claim – the CPLA and the Dog Bite Statute. To avoid liability under these statutes, it is helpful to have a policy for ensuring that once a dog exhibits any aggressive behavior (whether at work or elsewhere) it is no longer permitted and that a dog remains under its employee owner’s control at all times.