Provocation in dog bite cases
The commentary below was originally published in the California Lawyer magazine, February, 1998. The conclusions stated remain unchanged. Additional commentary has been inserted into this article, and continued revisions are likely.
Dogs are sometimes provoked into biting humans. In such cases a provocation defense can potentially counter strict owner liability under California's dog-bitestatute, Civil Code section 3342. See dicta in Gomes v Byrne (1959) 51 C2d 418 (assumption of the risk and "willfully invited injury" are defenses to statute); Davis v Gaschler (1992) 11 CA4th 1392.
The few California cases that have actually considered provocation did not have facts that supported the defense. In those cases it was deemed insufficiently provocative to crouch over and pet a dog (Smythe v Schacht (1949) 93 CA2d 315), reach down to pet a dog (Ellsworth v Elite Dry Cleaners (1954) 127 CA2d 479), or give a dog some food (Burden v Globerson (1967) 252 CA2d 468).
However, rulings from appellate courts in other states support the defense. An Illinois court ruled that a two-year-old child's stepping on the tail of a normally nonaggressive dalmatian was provocative. Nelson v Lewis (Ill App 1976) 344 NE2d 268. And in Arizona unintentional provocation is a defense to the state dog-bite statute since provocation depends on whether the action caused the animal to react, rather than on the intent of the actor, Toney v Bouthillier (Ariz App 1981) 631 P2d 557.
It should be pointed out, however, that California cases are not clear on whether a young child may be subject to the defense of provocation. See Greene v lMltts (1962) 210 CA2d 103 (young child may not be capable of assumption of risk or contributory negligence in dog-bite case); People v Berry (1991) 1 CA4th 778 (minor under age five held notlegally capable of acting with reasonable care toward dog). Construing a plaintiff's behavior as provocative seems to depend on whether the act could foreseeably elicit aggression from the dog. For each case this requires analysis of the nature of the act by the plaintiff, the severity of the dog's aggression, the dog's breed characteristics and individual temperament, and the context of the incident.
In sum, whether provocation happened in any given instance is a question of fact to be determined by the trier-of-fact based on the circumstances of each case. Similar actions affect dogs differently, and any given action will not necessarily provoke an attack by a dog. Whether provocation occurred in any given instance has to be evaluated on a case-by-case basis factoring in the dog's temperament and other circumstantial evidence about the dog.
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