In Virginia, every dog gets one free bite

When a Waynesboro boy was mauled by an enraged dog Tuesday, his mother, Lori Tinsley, expected police to take action against the dog’s owners.
But when an officer arrived, he told her there was little he could do. Because the dog was on its owner’s property, and no previous complaints had been filed against the animal, Virginia’s so-called “one bite rule” – which protects dogs and their owners from prosecution for a first-time attack – applied.
“It gives every dog a free bite,” said Kenneth Phillips, a California-based trial attorney who handles dog-bite cases all over the country. “If you own three dogs, all three of them can bite somebody. Then you can buy three more dogs, and all three of them can bite three people, and this can go on and on.”
A 2-year-old pit bull-labrador mix named Chopper, tethered to a 50- to 60-foot chain in a neighbor’s backyard, knocked Adam Tinsley, 11, to the ground, repeatedly biting his head and face, Lori Tinsley said. Forcing his way from under the animal, Adam was knocked down a second time before finally escaping into the street and screaming for help, she said.
“When I got to the scene, he was completely soaked in blood,” she said. “It looked as if the dog had ripped his throat out,” Tinsley said.
Adam was rushed to Augusta Medical Center where he received 14 stitches. If he had been turned even slightly during the attack, doctors told Lori Tinsley, he would have lost his eye. A resulting scar could be permanent, Tinsley said.
The one-bite rule, rooted in English Common Law, is an anachronism, Phillips said. Although it has been abolished or modified in most parts of the country, it still applies in 19 states, including Virginia.
“The rule was devised by English judges in the 1600s to judge the liability of English villagers at a time when people lived with goats and sheep and ducks in their house. It was before pit bulls or other fighting dogs, before insurance and before American concepts of responsibility and human rights were invented. The rule is completely out of touch with reality and fairness and everything else in modern American law.”
Police said the one-bite rule wasn’t the only thing preventing them from prosecuting anyone in the case. Because the dog was tethered on private property, the attack would have to have been completely unprovoked for them to press charges. Renee Audette, Chopper’s owner, said she had warned Adam Tinsley and other neighborhood children from playing in her backyard. She also said the dog was eating when Adam approached it.
Under another age-old Virginia rule, also rooted in English Common Law, that assertion could be sufficient to void any claim to damages Adam or his family might have – even if the injury had been much worse, Phillips said. According to the statute, called contributory negligence, if a person is even 1 percent responsible for an accident, they are entitled to no compensation at all. That rule only applies in three other states, Phillips said.
David Tompkins, a trial attorney based in Washington, D.C., who has argued hundreds of dog-bite cases in Virginia, said contributory negligence is actually a much larger barrier for dog-bite victims seeking damages than the one-bite rule.
An attorney could argue, for instance, that a “Beware of Dog” sign proves the dog owner who posted it knew their pet was potentially vicious, voiding the one-bite rule, Tompkins said. Even an intimidating dog name – such as Killer or Chopper – can be used to persuade a jury a dog owner was aware of possible danger. 
“In reality, the one-free-bite rule only exists in a vacuum,” Tompkins said. “I can probably finesse the one-bite rule, but not the contributory negligence. Even if the dog was named Mangler and had won 50 dog fights, if you go over and poke it with a stick, you’re basically out of luck.”
Phillips said the two rules together make Virginia one of the toughest places in America to claim damages from a dog bite. As a result, he generally avoids cases in the state.
“The one-bite rule is a huge barrier because you have to somehow prove what’s in the mind of the dog owner,” he said. “But it’s really easy to prove that a victim’s conduct is 1 percent responsible.”