McQuaig Ex Rel. McQuaig v. Brown , 270 S.C. 512 ( 1978 )

Littlejohn, Justice

(concurring) :

I concur in the opinion of Mr. Justice Gregory, but only because we have not been asked to review the previous decisions of this Court.

The rule of law applied by the lower court and followed by this Court today and as recently as the case of Giles v. Russell, 255 S. C. 513, 180 S. E. (2d) 201 (1971), apparently had its origin as a matter of common law in this State in the case of McCaskill v. Elliott, 5 Strob. 196 (1850). Since that time it has been the law that the owner of a dog is not responsible for his damages unless he knew, or should have known, that the dog had (1) either bitten some person previously, or (2) was generally of a mischievous disposition. This is said to be the general rule of common law, but many states have changed the rule by statute.

The legislature has provided, in § 15-75-30, Code of Laws of South Carolina (1976), for the collection of damages where an unmarried minor child, under the age of 17, does damage to another’s property. In such a case the parent of the child must respond to the damaged persons up to the sum of $1,000.00. Thus, we have the paradoxical situation in which a parent may be liable for damages of his child who goes next door and harms a dog, but need not respond in damages if his dog goes next door and harms a child, unless he had bitten before or was known to be of a mischievous nature.

The time has come when this Court should review its basic concept of liability as relates to the owners of dogs.

When a dog bites a child, or kills the calf of a farmer, someone must bear the brunt of the hospital bill for the child, or absorb the loss of the value of the calf. As between the owner of the dog on the one hand, and the father of the child, or owner of the calf, on the other hand, I have no difficulty in concluding that the loss should fall upon the owner of the dog.

California has dealt with this matter by way of statute. Out of that statute has come a jury instruction found in California Jury Instructions — Civil (1950 Supp.). It reads as follows:

“The law of California provides that the owner of any dog which bites a person while such person is on or in a public place or is lawfully on or in a private place, including the property of the owner of such dog, is liable for such damages as may be suffered by the person bitten regardless of whether or not the dog previously had been vicious, regardless of the owner’s knowledge or lack of knowledge of any such viciousness, and regardless of whether or not the owner has been negligent in respect to the dog, provided, however, that if a person knowingly and voluntarily invites attack upon himself [herself], or if, when on the property of the dog owner, a person voluntarily, knowingly, and without reasonable necessity, exposes himself [herself] to the danger, the owner of the dog is not liable for the consequences. . . .”

I would adopt this statement of law for South Carolina, thereby overruling McCaskill and all of the cases which have followed the doctrine expounded.

Rhodes, J., concurs.