Common Law Liability of Dog Owners

Washington State's "Dog Bite Statute" holds dog owners strictly liable for damages caused by injuries inflicted by their dogs. The phrase "strictly liable" means that the dog owner is liable regardless of whether the owner knew about the dog's dangerous propensities and regardless of whether the owner did anything wrong. To impose strict liability under the law, you simply must meet the elements of the statute.
But there is another basis to hold a dog owner liable for damages caused by the dog. In Washington a dog owner can also be held liable for damages under the common law. In this chapter I explain what "common law" means and how a dog owner can still be obligated to pay damages even if the terms of the "Dog Bite Statute" cannot be met.
What Is "Common Law"?
In our system of government, laws are usually created in two ways. The first way is when elected representatives draft a law and then enact it. At the state level, this body of representatives is called the "legislature." The Washington state legislature creates laws known as "statutes." At the local or city level, the body is often called the "city council" and it can create laws known as "ordinances." At the county level these laws may be called "codes." The "Dog Bite Statute" is an example of a law created by the Washington state legislature.
The second way that laws can be created is through the courts. This is also called "judge-made law" or more accurately, the "common law." Essentially, the "common law" refers to a body of law that is created by the decisions or opinions of judges. These judge-made decisions must be followed and enforced by the lower courts, often called trial courts. A leading judge-made law is often referred to as "precedent" because a lower court must comply with the decision and also enforce it in other cases with similar fact patterns.
The courts are only permitted to decide issues of law based on the narrow set of facts before it. The courts cannot make law based on hypothetical facts. This means that the common law can take many years to develop. As a result, the common law may be created in a patch-work fashion. At times, seemingly inconsistent or contradictory laws can be reached by two different courts when the facts of the case are nearly identical or similar. The application of the common law can be much less predictable since the facts giving rise to the laws may be slightly different in subsequent cases. The existence of a new fact or the omission of a small fact in a new case can give rise to new exceptions or changes in the common law addressing that particular issue.
It is important to understand that the state legislature can enact a law that overrules or changes the common law on a particular subject. This can only occur if the legislature's law is determined to be constitutional, which is a question left up to the courts. For example, by enacting the "Dog Bite Statute," the Washington state legislature essentially supplemented or added to the common law by creating a new cause of action as long as the elements of the statute are met.
In Washington, there is a body of judge-made law (or common law) that has been created over the years with respect to liability of dog owners for injuries or damages inflicted by their dogs. The "common law" liability of dog owners is more fully explained below.