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At some time most of us will own an animal, usually a cat or dog. If you are a farmer, your income may depend upon the animals you own. Whether family pets or the source of your livelihood, animals can be a potential liability for their owners. There are two typical ways that domestic animals implicate their owners in litigation: (1) they trespass on another's land and cause property damage or (2) they cause personal injury to someone. This article briefly discusses some of the more important aspects of both cases.

Let's look at the property damage situation first. Property damage is most often caused by farm livestock. Under the common-law, a livestock owner had a duty to fence in his property to keep his animals on his own land; if they escaped the owner was liable for damages. In Virginia, however, the common-law is not in force. In Virginia, the burden is on landowners to protect their property and crops against trespassing livestock by building fences to keep them out. Livestock owners in Virginia are not required to enclose their land, and are not liable for damages caused by their trespassing animals unless their animals go upon land enclosed by a "lawful fence." This so called "fence out" rule was adopted when Virginia was first settled because fencing materials were scarce and there were vast amounts of unoccupied land available for pasturage. The Virginia Code sets forth exactly what constitutes a "lawful fence." Although the law specifies certain types of fencing that qualify as lawful fences, the intent of the law is to provide for fences that livestock are not able to creep through.

There are several facets to this "fence out" rule. First, Virginia has adopted a "no fence" law. This law gives counties the option to pass a statute making every property line equivalent to a lawful fence. If a county enacts such a law then it is called a "no fence" county because if livestock cross another person's property line it is the same as crossing a lawful fence, even if no fence has actually been built, and the livestock owner may be liable for damages. Augusta, Page, Roanoke and Rockingham are examples of "no fence" counties. If a county does not pass such a law, then the "fence out" rule is in force and the burden is on a landowner to build fences to keep trespassing livestock out. In "fence out" counties, the owners of trespassing livestock are not liable unless their animals go on land that has actually been enclosed by a lawful fence. Franklin, Highland, Nelson, Rockbridge and Shenandoah are examples of "fence out" counties.

Secondly, even if livestock cross a lawful fence, the owner's liability is not absolute. The person suffering property damage must prove: (1) exactly how the livestock escaped from their owner's premises; (2) that the means of escape was caused by the owner's negligence; and (3) that the livestock owner either knew his animals had escaped and did not correct the situation or should have known his animals were likely to escape and did not use ordinary care to prevent it from happening.

Thirdly, these rules apply only to livestock domesticated by man (i.e. horses, cattle goats, hogs or sheep). Fowl and dogs are governed by common law rules in Virginia and they must be fenced in. Finally, these rules only apply in counties; they do not apply within cities and towns. In urban areas domesticated livestock must be fenced in, if allowed at all.

When an animal causes personal injuries, the rules are somewhat different. If the injury occurs on the animal owner's property, the owner's liability will be determined by general liability and negligence concepts. The issues are the same as most other negligence cases: whether the owner was negligent and whether his negligence, if any, caused the injury. In addition, if the injured visitor was on the animal owner's property for a business purpose rather than as social invitee, the owner will owe the visitor a higher degree of care.

If the injury occurs off of the owner's property, the law in Virginia is less clear. Some commentators argue that general negligence concepts also govern this situation. Others argue that it is similar to the property damage rule so that whether the injury occurred in a "fence out" or "no-fence" area determines the owner's liability.

There are other special considerations when an animal causes personal injuries. First, the type of animal causing the injury is important. If the animal is of a type generally considered to be dangerous such as a bull or a stallion, the owner will be held to a higher degree of care. Similarly, if the animal is of a particularly dangerous breed, such as a pit bull terrier, the owner will likewise be held to a higher degree of care. The owner does not need to have actual knowledge that the animal is likely to injure someone. The owner is charged with knowledge of the dangerous propensities of the specific animal and the breed, that he ought to have been aware of by the exercise of ordinary care.

With regard to dogs, local leash ordinances usually set the standard of care. Most leash ordinances make it unlawful for owners to allow their dogs to run free. If a dog is loose in violation of such an ordinance and bites someone, the owner may be liable even though there was no reason for the owner to know the the dog was likely to bite.

Absent a leash ordinance, the owner of a dog may allow his dog to run free. However, if the dog owner knows or should know that his dog might cause injury, he has a duty to use ordinary care to prevent injury to others. Consequently, if a dog is of a biting breed, letting it run loose may be negligent even without a leash law. As a general rule, if a dog is not from a biting breed, the dog is entitled to one free bite before the owner is charged with knowledge that the dog is a biter.

Here are some helpful hints to help animal owners prevent accidents and avoid liability: (1) if you own livestock check fences periodically, particularly after storms since trees or limbs often fall on fences; (2) if your livestock get out, respond immediately to secure them; (3) if you have a farming operation, do not allow visitors to roam unattended near livestock; (4) if you own a stallion, bull or boar, build sturdy enclosures and take extra precautions to keep visitors away; (5) if you have a dog that is aggressive, keep it tied or in a pen and post warning signs; (6) do not allow small children to handle or play with larger animals, even friendly dogs can injure smaller children. Although liability for personal injuries and property damage caused by domestic animals is usually covered under most homeowner's insurance policies, there is no substitute for good common sense in the maintenance and handling of our four-legged friends.