Bite incident: What does the law say?
With the abolition of the federal law on dogs, the topic of animal training was delegated to the cantons. Zurich and Thurgau continue to require owners of larger dogs to have them trained. The other cantons have (temporarily) opted out of this. However, there is agreement regarding liability insurance, which is required throughout Switzerland. This is because if a pet owner is liable for an injury caused by their dog, this is to ensure that the injured party does not have to bear the financial loss themselves because the offending dog owner has no insurance and may not have enough liquid assets to cover the damage.
(www.tierimrecht.org)
The legal situation
To begin with, it is necessary to examine the legal situation regarding dog ownership, or more precisely Art. 56 of the Swiss Code of Obligations concerning liability for animals. Because anyone who keeps an animal creates a risk for their environment, since animals can sometimes be unpredictable and their behaviour can be dangerous. This particular danger is sanctioned by a special liability rule. Art. 56 OR imposes strict liability on the pet owner for the damage caused by their animal.
Conclusion: If your dog bites a person or another animal, you, as the owner, are generally liable, regardless of whether the injured party behaved incorrectly.
Exemption
However, the owner is entitled to seek exemption. He can free himself with the proof that he has complied with the necessary duty of care, whereby the extent of his care is assessed objectively. The animal owner can violate his duty of care in particular with regard to the keeping of the animal, the organisation of the keeping of the animal, the transport of the animal or the instruction of the auxiliary person.
Conclusion:
- Custody: If the dog is allowed to roam freely, it must be possible to call it back, and it must be safe when interacting with other animals and people.
- Organisation of animal husbandry: If the dog is cared for by third parties, it must be ensured that they are experienced in handling the animal or the breed and exercise the necessary caution when handling it.
- Transporting the animal: The dog must be secured in the car in such a way that it does not disturb the driver while driving and that it cannot injure anyone in the event of abrupt braking maneuvers (e.g. by flying through the interior).
Ownership
In order to properly assess the circumstances of liability, it is also necessary to clarify who the owner of the dog is. Ownership is an actual relationship. The owner is the person who exercises authority over the animal. He is usually the owner and possessor of the animal. The owner is the person who benefits from the animal. They are responsible for the duty of care, which they must either fulfill themselves or through the agency of auxiliary persons. They remain the owner even if they temporarily leave the animal in the care of a third party, an auxiliary person – veterinarian, farrier or dog sitter. The owner is responsible for the behaviour of the auxiliary as for their own. If the auxiliary has insufficiently supervised the animal through his own fault and this causes damage, then the auxiliary is liable based on Art. 41 OR in addition to the animal owner.
Conclusion: The animal owner is usually the owner of the animal. In principle, responsibility for the animal always lies with the animal owner, regardless of whether the animal is being cared for by a third party or not.
However, if a caregiver inadequately supervises the animal entrusted to them, leaves the garden or front door open, allowing the dog to escape, or the animal is leashed and collared, although it cannot be called back by the pet sitter, the pet sitter can also be held liable.
Contributory negligence
Art. 56 para. 2 of the Swiss Code of Obligations provides for recourse in favour of the animal owner if his animal has been provoked by a third party or a foreign animal.
Conclusion: If the dog is cornered, tortured or provoked, the third party can be held responsible.