Hawkeye Dog Doesn't Get One Bite, Appeals Court Rules

Iowa case law summary by Attorney Richard Clem: Dog bite Iowa Code 351.28.

Teresa Marie Burt, as mother and next friend of Salem Paul Baker, v. Anthony R. Miller. Dog bite Iowa Code 351.28

Anthony Miller owned a home in Waterloo Iowa with his son Roger and a pitbull dog. A friend, Douglas Baker, was also staying with him. Baker's son Salem visited the house every other weekend. Salem, then eleven years old, was spending the weekend there on May 23, 2009. Salem was petting the dog and it nipped at his hands, but with no injury.

When Salem came downstairs the next morning, the dog started barking at him and chasing him. Salem tried to run away, but he tripped, and the dog bit him on the leg. Salem's dad got the dog off of him, but the bite required medical treatment and sixteen days of hospitalization. He had five surgeries, including a skin graft. He continues to walk with a limp and can't stand for long periods of time. Salem later testified that he can't participate in sports and is embarrassed to have people see the leg. Medical bills were over $50,000, with Medicaid picking up much of the tab. Miller subsequently had the animal put down.

Salem's mother brought a lawsuit in Black Hawk County District Court against Miller. A trial was held before Judge George L. Stigler, who found that Miller was 100% at fault. The trial court held that Miller was negligent for not maintaining control, especially since Miller knew the breed's reputation and knew that the dog had nipped at Salem the night before. The trial court awarded a total judgment of over $125,000 plus interest.

Miller acted as his own attorney during the trial. Dissatisfied with the outcome of the trial, he continued acting as his own attorney, and filed an appeal with the Iowa Court of Appeals. Miller first made a number of arguments based upon constitutional issues. But since he hadn't even raised these issues in the trial court, the Court of Appeals did not consider these arguments.

Miller then took issue with the trial court's finding that he was a hundred percent at fault. He argued that he was outside during the incident, and that the boy's father was inside with the boy and the dog. Therefore, he argued that he could not be completely at fault. The Court of Appeals quickly rejected this argument by pointing to the Iowa dog bite statute, Iowa Code section 351.28. Under that statute, the owner of a dog is strictly liable for all damages done by the dog attacking or attempting to bite a person, unless the victim was doing an unlawful act. Miller had admitted that he was the owner of the dog.

Specifically, the Court of Appeals held that the statute did not allow another person to share a portion of the fault. Since there were no allegations that Salem was doing anything unlawful,

Miller also tried to argue that there was insufficient evidence of the nipping the night before. But the appeals court held that this evidence wasn't really relevant one way or another. The owner of the dog is strictly liable, and a dog in Iowa is not allowed one bite under this statute. Miller also argued that the medical bills were mostly covered by Medicaid, and that the plaintiffs were only out of pocket $3, despite the $50,000 tab. But the court noted that the statute makes the owner liable for the damages "done by" the dog. Despite the involvement of Medicaid, the dog had still done $50,000 worth of medical damages.

For these reasons, the Court of Appeals affirmed the judgment of the trial court.

No. 12-1934 (Iowa ct. App. Mar. 26, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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