One Tuesday evening, 27-year-old white-collar Ms. Zhao (hereinafter referred to as Zhao Mou), as usual, walked the dog downstairs in the community, and when passing through the community garden, she met Wang Mou, who was walking her dog in the community, the other party did not lead the dog leash, the two dogs tore and bit, and the scene was chaotic, causing Zhao Mou's thigh to be bitten by Wang's pet dog, and multiple wounds were bleeding. Wang claimed that he wanted to celebrate his mother's birthday and could not accompany Zhao to the hospital for treatment, so he contacted Zhao by phone and exchanged contact information with Zhao. Zhao had to take a taxi to the hospital by himself, and Zhao followed the doctor's instructions to inject the rabies vaccine, and failed to work for 3 days due to injury. During Zhao's injection of 3 vaccines, Wang never contacted Zhao or apologized to Zhao. Afterwards, Zhao asked Wang for treatment, transportation, and lost time totaling 2,700 yuan. Wang claimed that he purchased a certain insurance company xx pet liability insurance for his dog, and he was willing to bear the expenses within the scope of insurance compensation, and the rest was borne by Zhao himself. At the same time, Wang believes that Zhao is also responsible in the incident, and there is no evidence to prove that he should bear full responsibility. Zhao mou could not accept it and asked the author for help.
Infringement incidents caused by dog walking occur from time to time, and Zhao's incident reflects the difficulty of determining liability and the inability of victims to receive reasonable compensation in such infringement incidents. As a professional lawyer, the author puts forward the following relevant legal opinions on such infringement cases, hoping to provide you with some reference.
1. When a dog attacks a person, is the victim's behavior an emergency avoidance or legitimate defense? What is the difference between the two?
The dog itself invades people, and the counterattack of the person against the dog constitutes an emergency avoidance, because the danger comes directly from the dog; but if the dog owner deliberately lets the dog bite the person, then the wrongdoer is the dog owner, the dog is only the tool of the wrongdoer, and the victim's defense counterattack against the dog is the legitimate defense that points to the wrongdoer.
The two have in common: the purpose of the acts is to protect the State, the public interest, the personal property and rights of oneself or others from ongoing wrongful infringement.
The difference between the two is: (1) the source of danger of legitimate defense is only the unlawful infringement of the wrongdoer; the dangerous sources of emergency avoidance are diverse; (2) the damage caused by emergency avoidance is the only way to eliminate the danger, and the limitation of legitimate defense; (3) the damage caused by emergency avoidance must be less than the damage caused by the danger, and the damage caused by legitimate defense is allowed to be equal to or greater than the damage that may be caused by the wrongful infringement; (4) legitimate defense can only be carried out against the wrongfully infringed person, Emergency avoidance can be implemented for third parties.
Legitimate defense and emergency risk avoidance are two different legal systems, and how to apply them requires careful study and judgment of different cases and specific circumstances, and will not be repeated here.
2. When a dog attacks a person, can the victim take emergency risk avoidance behavior? Should the victim be liable for damage?
According to Article 182 of the Civil Code of the People's Republic of China, if damage is caused by emergency risk avoidance, the person who caused the danger shall bear civil liability. Where the danger is caused by natural causes, the emergency avoidant shall not bear civil liability and may be given appropriate compensation. Where emergency avoidance measures are improper or exceed the necessary limits, causing undue harm, the emergency avoidant shall bear appropriate civil liability.
In other words, the victim takes an emergency risk avoidance act, and the dog owner is liable for the consequences of the damage caused. However, emergency avoidance cannot be excessive, otherwise the victim will also bear appropriate civil liability. Where the act of emergency avoidance causes damage to a third party, the owner of the dog shall also bear the liability for compensation for the damage.
3. If the dog attacks the person, if there is no dog owner present, how to determine the object of the claim?
According to Article 1249 of the Civil Code of the People's Republic of China, if an abandoned or escaped animal causes damage to others during the period of abandonment or escape, the original breeder or manager of the animal shall bear tort liability.
In practice, although there is no fixed owner or manager of stray cats and dogs, but caring people feed regularly or irregularly as feeders, in which case the feeder of stray animals is not responsible; if the ownerless animal cannot find the original owner, breeder or manager, nor does it take care of or feeder, if it is infringed within a specific area, it shall be borne by the unit or individual responsible for security obligations.
4. What evidence does the victim need to provide to claim compensation?
According to Article 1245 of the Civil Code of the People's Republic of China, if an animal is raised and causes damage to others, the animal keeper or manager shall bear tort liability; however, if it can be proved that the damage was caused by the intentional or gross negligence of the infringed person, the liability may not be borne or mitigated. Article 1246: Where, in violation of management regulations, safety measures are not taken against animals and cause harm to others, the animal breeder or manager shall bear tort liability; however, if it can be proved that the damage was intentionally caused by the infringed person, the liability may be reduced.
There are four elements of general tort liability: namely, the commission of the illegal act, the consequences of causing damage, the causal relationship between the illegal act and the consequences of the damage, and the subjective fault of the perpetrator with intent or negligence. However, if the animal is raised and causes damage to others, the animal keeper or manager bears the presumption of fault liability, and the victim only needs to prove the causal relationship between the infringer's illegal act, the consequences of the damage caused, and the consequences of the violation and the consequences of the damage.
The victim must still provide the following evidence: (1) proof of the animal keeper or manager (2) proof of the victim's damage consequences (diagnosis, forensic evaluation, relevant photographs, etc.) (3) other evidence
In the court's judgment documents, generally according to the regulations on dog management in various places, whether the pet dog has obtained the "Dog Breeding Permit", whether the dog is leashed when going out, and whether the dog walking time is during the peak period of abortion, whether the animal breeder or manager has fulfilled the corresponding duty of care. Secondly, in the case of the dispute over the liability for damage caused by the animal, although the animal did not directly contact the victim, but because of its dangerous actions such as catching up and approaching, the victim fell and was injured, and the court found that there was a causal relationship, and the animal keeper or manager could not produce evidence to prove that the victim had intentional or gross negligence in the damage, and should bear the full liability for compensation.
5. Is the burden of proof on the infringed party the same depending on the breed of dogs?
Depending on the breed of dog, the burden of proof of the infringed person is also different.
According to Article 1247 of the Civil Code of the People's Republic of China, "Where dangerous animals such as fierce dogs are prohibited from breeding cause harm to others, the animal breeder or manager shall bear tort liability." In other words, if the animal breeder raises dangerous animals such as fierce dogs that are prohibited from breeding, regardless of whether the victim is at fault, the animal breeder shall bear full liability for compensation. Animal breeders or managers shall not request the court to waive or mitigate tort liability in accordance with the provisions of the latter paragraph of Article 1245 of the Civil Code that "the damage was caused by the intentional or gross negligence of the infringed person". If a dangerous animal such as a fierce dog that is not prohibited from breeding causes damage to the victim, the animal breeder or manager needs to bear the burden of proof for the reason for exemption, and in this case, it is necessary to consider whether the victim has intentional or gross negligence.
6. What is the scope of the victim's claim for damages? How should it be calculated?
Regarding the issue of liability for damages, depending on the specific circumstances of the injury, it is generally necessary to bear the medical expenses, nursing expenses, transportation expenses, nutrition costs, lost work expenses, etc., and may also bear the disability compensation if it constitutes a disability. Those who cause moral damage may also claim compensation for moral damage.
According to Article 1179 of the Civil Code of the People's Republic of China, if a person infringes upon another person and causes personal injury, he shall be compensated for reasonable expenses incurred for treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospital meal subsidies, etc., as well as income reduced due to lost work. Where disability is caused, compensation shall also be made for assistive devices and compensation for disability; where death is caused, funeral expenses and death compensation shall also be compensated. Article 1183:Where infringement of the personal rights and interests of natural persons causes serious mental damage, the infringed party has the right to request compensation for moral damages. Where serious mental damage is caused by intentional or gross negligence infringing on a specific object of personal significance to a natural person, the infringed person has the right to request compensation for moral damage.
The amount of tort damages is calculated in accordance with the relevant provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases (amended in 2020).
7. What kind of evidence does the dog owner need to provide if he wants to be exempted from liability?
The owner of the dog must provide evidence that the damage was caused by the victim's intent or gross negligence. Alternatively, if the dog owner provides that the damage was caused by the fault of a third party, such as the third party deliberately provoking or feeding the dog, etc., which caused the dog to commit a harmful act, then the damage shall be liable for compensation by the third party. If the owner of the dog keeps dangerous animals such as prohibited dogs and causes damage to others, he cannot be exempted from liability.
As a trainee lawyer with a LL.M., the above sharing may still be lacking, but I hope it will inspire you. During the internship of Cheng Junwen's lawyer team, I deeply realized that legal people must have a professional and truth-seeking spirit and an attitude of continuous learning. With the help of the team members and the infection of team spirit, I have gained rapid growth, not only absorbing a lot of legal knowledge "dry goods", but also learning to gradually apply the legal knowledge I have learned to legal practice. I firmly believe that after the end of the full internship period, I will definitely grow into a qualified and excellent professional lawyer to provide you with more professional legal services. Trust me and trust our team!
The author of this article: Chang Hao Lawyer (Intern) Master of Laws, cheng Junwen's core member of the legal team. If a worker desires to do a good thing, he must first use it. Immersed in the study of civil and commercial legal theory knowledge for many years, focusing on contracts, property rights, marriage and family, tort liability and other fields, and combining theory and practice, and constantly improving their practical operation level, the parties and tutors unanimously praised.
Practice philosophy: diligent, selfless, responsible.
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