Civil liability for potentially dangerous breed dog attack

April 19 , 2019 // Specialty

Published in Abogacía Española

The evolution of the treatment of civil liability, contractual and extracontractual, has always been in the crosshairs of the legal profession. The person in charge of interpreting the law, the Supreme Court, has carried out different interpretations on the scope of civil or Aquilian liability, in each one of the different matters in which it is manifested; criminal, civil, administrative ... adapting to the socio-economic and historical context the most coherent interpretation of social interests. Well, before getting into the background, we must warn that there are many treaties, studies and theses on the subject, so disparate and opposed as casuistry that we are applying, in short, an ambiguous system of civil liability that is slowly giving way areas of strict liability, as in these types of cases. It is imposed in the times that run the target system focused on risk. Thus, the already distant STS of July 12, 2007 (RJ 2007,5592), indicated that "The obligation to respond for the damage caused by animals, more specifically by dogs - domestic or feral - becomes increasingly demanding At present, due to its frequency and cruelty of results, to the point of constituting social alarm, however, it has happened at all times, which forced us to adopt necessary measures and thus with a Roman precedent ("actio de pauperie") ".
The applicable basic legislation arises from Article 1902 of the Civil Code, which provides for the assumptions of culpable behavior, and causal relationship required for the remedial or compensatory effect to take effect, as established, among others, Supreme Court Judgments of February 12, 1987. March 23, 1982, May 6 and December 3, 1983 and July 17, 1987, which refer to fault or negligence.
Article 1905 CC that states "The owner of an animal, or whoever uses it, is responsible for the damage caused, even if it escapes or mislaid. This responsibility will only cease in the event that the damage was due to force majeure or the fault of the person who suffered it. "And specifically, it governs ROYAL DECREE 287/2002, of March 22, by which Law 50/1999 is developed. , of December 23, on the legal regime of the possession of potentially dangerous animals, which includes 8 breeds. Regardless of what criteria have been followed to typify, even stigmatize, as "potentially dangerous", the RD also stipulates a series of obligations of the holder and / or owner of the animal, such as obtaining a license, carrying a muzzle, etc. It is relevant to indicate that the list is not a numerus clausus, but that if the dog meets the characteristics marked in Annex II, it can be subsumed as a dangerous breed, regardless of whether the race to which it belongs is not included in that list.
But focusing again on the issue, the current interpretation of the High Court also affects the regulation of extracontractual liability contained in the aforementioned art. 1905 CC, and insists on the STS of March 4, 2009 (ROJ 919/2009) in which the jurisprudence has highlighted the objective nature of this responsibility, based on the risk inherent to the possession or use for the self-interest of the animals, which requires only a material chance, establishing the presumption of guilt of the owner of the animal or who uses it for its mere possession or use, with the only exemption from cases of force majeure or fault of the injured party.
 Said rule according to settled case-law, interprets that the precept contains a presumption iure et de iure of culpability, because the fact of having and enjoying the dogs in their own interest, involves risks that the owner must assume in its negative consequences so that once the animal is identified and the causal link between the aggression of the animal and the damage established, it is only possible to exempt the fault by breaking the causal link by the intervention of the injured party or by the act of force majeure, proof that is required in a sufficient and effective way to the person who uses the animal, which will have to be accredited in each case and to value with the tests that the dog was the efficient cause to produce the harmful result.

Responsabilidad civil por ataque de perro de raza potencialmente peligrosa

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