Guidelines for behavioral discovery in dog bite cases

      This article, initially published in 1991 by Dr. Polsky in the edited textbook entitled "Dog Behavior & the Law", D. Favre & P. Borchelt, eds. This paper has been updated and modifications have been made for publication on this website.

      In this chapter, I will review the kind of information needed to substantiate or refute the notion that the defendant had know edge of a dog's dangerous propensities. Discovery has to focus on gathering information that answers the following question: Did the owner of the dog know enough about the dog's behavior to foresee that it might cause injury to a person?

      Before I address this question, I will briefly touch upon a related concern that frequently arises during the discovery process in dog-related injury cases: namely, whether to engage the services of an expert in animal behavior. Uncertainty may exist among personal injury attorneys about the value of designating an expert in animal behavior. Specifically, attorneys need to know what an animal behaviorist can do for their case, and assuming an animal behavior expert can help, then what qualifications should such an expert possess?

How Can an Animal Behavior Expert Help?

      In most instances it would be helpful to solicit the opinion of an animal behaviorist if liability is contested. Questions about liability are frequently tied to questions about the temperament of the dog, the foreseeability of the incident, why the incident happened or how it could have been prevented. Because of this, an animal behavioral expert can assist in areas which include:

      1. Reconstruct how the incident happened, or why it happened, for the purposes of rendering an opinion regarding the credibility of the different versions offered by defendant and plaintiff;

      2. Determine whether the dog was aggressive or dangerous by nature;

      3. Determine whether the dog was provoked to engage in the misbehavior which resulted in the plaintiff's injury;

      4. Determine whether the owner or another person (e.g., landlord) should have been aware of the dog's dangerous propensities;

      5. Assess why the incident happened for the purpose of stating whether weather the incident could have been avoided.

What kind of animal behavior expert is best qualified for the assignment?

      One important criteria on which to judge an expert's worth is his or her academic background (e.g., a Ph.D. in animal behavior or a D.V.M. degree with a specialization in animal behavior). It might come as a surprise to some attorneys to learn that the science of animal behavior is an established academic discipline. Most major universities offer doctoral-level study in this area. Knowledge from this discipline (technically know as ethology) ha direct and profound applicability to our understanding of the behavior of companion dogs. Only recently, however, have Ph.D. animal behaviorists made the effort to let attorneys know of their availability for forensic work.

      What advantage does an attorney gain in hiring an expert with an academic background in animal behavior? First, the attorney can be assured that this type of individual probably has the depth of knowledge needed to make a competent assessment of dog behavior. To provide such an assessment one needs an understanding of the fundamental principles governing animal behavior. These principles are not based on anthropomorphic reasoning. Instead, the academically trained animal behaviorist relies on scientific principles derived from learning theory, genetics, physiology, sensory-perceptual functioning, and ethology to form his opinions. Knowledge like this is essential to properly assess the complexity of variables influencing dog behavior.

      Second, academic training allows one to interpret findings in the scientific literature on animal behavior and apply these findings to real world situations with dogs. Many findings have direct forensic applicability. For example, the ethological term "reaction momentum" (coined by the late Nobel laureate, Konrad Lorenz) explains an animal's persistence in an aroused motivational-state long after the original eliciting stimulus has disappeared. On several occasions, I have used this term to help a jury understand the motivational basis underlying a dog's attack upon a human.

      The background and experience of the academically trained animal behaviorist contrasts sharply with the background of the dog trainer. This distinction is important because many dog trainers present themselves to attorneys as dog bite experts. Dog trainers and other self-professed animal behavior experts are seriously compromised because they usually lack formal training or research experience in the science of animal behavior. Because of this, dog trainers are limited to proffering explanation that has no scientific basis. Frequently, their reasoning is anthropomorphic. Attorneys need to appreciate that the knowledge needed to train a dog in obedience skills, which most dog trainer probably possess, differs greatly from the kind of knowledge needed to properly understand and assess nonnal and abnormal aspects of dog behavior in a variety of contexts. At best, a dog trainer's experience tells one how behavior occurs (e.g., the various forms it might take) but it provides no scientific basis as to why behavior occurs (e.g., its motivational basis).

      Academic training in itself is not the sole criteria on which one's qualifications as an dog bite expert should rest. We all realize that textbook knowledge or research experience can only carry one so far. Undoubtedly, practical experience with dogs is of great importance. For the most part, however, the majority of academically trained applied animal behaviorists maintain busy private practices which afford them the opportunity for hands-on experience with dogs.

Steps in Behavioral Discovery

        Step 1: Identify the dog who caused injury to the plaintiff

     In the early stages of a lawsuit, the dog can usually be identified through interrogatories. Essential pieces of information to gather include the breed of the dog, its age, sex, size, name, coat color, etc. Any distinguishing physical features of the dog should be noted. Information should be gathered referencing the do's physical appearance at the time the incident happened. Because discovery is always undertaken after an incident has occurred, it is possible that the suspect dog may not look the same subsequently. For example, the length of a dog's coat can easily be altered to give it a different appearance.

      Information about a dog's identity is obviously important if uncertainty exists about which dog innicted the plaintiff's njuries. In the majority of cases this does not present a problem, however. Nonetheless, blaming one dog for the incident, rather than another, can happen. Take he case where the plaintiff intervenes in a dog fight. A typical scenario is as folows: the plaintiff is out walking his dog when suddenly another dog charges and attacks. The plaintiff, fearing harm to his dog, physically intervenes in an attempt to stop the fight, and in the process gets billen or is injured in some matter. In the midst of the scuffle, the plaintiff may not realize which dog did the biting, or behaved in a manner to cause injury to the plaintiff.

     Step 2: Examine the Dog

     Whether a behavioral examination is required varies from case to case. A behavioral exam aims, in part, to determine whether the subject dog was capable of displaying behavior similar to the behavior that cause injury to the plaintiff. If an examination is undertaken, in some instances it may be desirable to conduct the examination under circumstances similar to the circumstances that existed when the incident occurred. In other words, in some cases recreation, if possible, may try to be approximated. If the circumstances can be realistically we created because the practical concerns or because the dog is too dangerous, then the dog's reactions to of other kinds of procedures undertaken by the expert or the dog's owner (under the instruction of the expert), may be used with reliability and validity to infer the behavioral tendencies of the dog.

      Results from an exam may be important if the plaintiff and defense maintain different versions of how the incident happened. Several previous cases in which I have been involved as an expert,cases illustrate this point.

      In the first, the tip of the plaintiff's index finger was bitten-off. The plaintifr claimed that the incitlent happened when he was leaning against the six-foot wall that separated his yard from his neighbors. The plaintiff said that his arm was fully extentled against the wall. Moments before the incident happened, he heard the neighbor's dog barking on the othe side. The next thing he knew was that the tip of his index finger was missing. His contention was that the dog on the other side of the wall had jumped and severed his finger caused by a dog bite.

      The defense became suspicious of his account because there was no blood in the area. Moreover, the owners of the dog in question were adamant that their dog was not capable, either behaviorally or physically of engaging in such an act The dog had never bitten anyone previously to this alleged incident. It was an older, medium size, family oriented dog. The defendants made the dog available for inspeclion. The inspection focused on: (I) the height of the wall relative to the height of the dog when lie was fully outstretched against the wall; (2) the dog's jumping ability (tested with a delicious food treat held above its head); and (3) the temperament of the dog with particular reference to its territorial-protective tendencies. Results revealed a mild-mannered dog who was not physically capable of jumping high enough for it's head clear the wall to reach the plaintiff. Settlement in this case was very favorable for the defense.

      The second case involved a motorcycle chase situation. Plaintiff claimed that he was attempting to evade the pursuit of the defendant's Australian cattle dog, and that the dog caused him to lose control and crash. The defense questioned his account. At the time of the incident, the defendantowner of the dog said that his dog was standing next to him in the front yard. He said the dog left the yard and approached the fallen motorcyclist only after the dog heard the clamor of the crash. Plaintiff's counsel argued that the inherent herding tendencies found in Australian cattle dogs made it likely that the tendency to chase motorcycles would be present in this particular dog's behavioral repertoire. Significantly,there were no witnesses stating that they had ever seen the dog chase motorcycles in the past. Thus counsel for the defense needed an answer to a critical but straightforward question: Did this particular dog possess the tendency to chase motorcycles, and therefore at least in part validate the allegations of the plaintiff?

      The exam of the dog was setup to simulate the conditions as they existed at the time of the incident: The dog wa unrestrained in its yard, its owner was nearby, it was approximately the same time of day, the weather was the same. Testing consisted of staging the situation by having a man on a motorcycle pass the property at the speed the plaintiff said he was traveling when he countered the dog. The motorcycle used matched the kind of motorcycle the plaintiff was driving. Testing was recorded unobtrusively on video for later analysis. The results of this exam clearly showed that this dog had no inclination to chase the motorcycle on this particular day when testing was conducted.

      Not all cases require a behavioral examination, however. The need for an examination has to be evaluated on a case-by-case basis. If the dog is alive and its whereabouts known, then in some cases valuable information may be leaned from an exam. On the other hand, if sufficient circumstantial evidence is available which speaks to the temperament and behavior of the dog, then results from an appropriately conducted exam may not add much to the opinion of the animal behavior expert.

     Step 3: Gather testimony from people who know the dog

      In the absence of a behavior exam, knowledge about the dog's behavior may be gleaned from what people say about the dog, particularly the owner or others who lived with the dog. Questioning of relevant individuals, should focus on the dog's temperament, previous training experiences, how it behaved in specified situations (e.g., how it reacled lo strangers enlering lhe home), and if lhe dog had ever displayed behavior similar in kind to the kind of behavior that injured the plaintiff. A deposition is best suited to glean this kind of information because of the detail needed. Before the deposition, counsel will usually benefit if a behavioral expert provides them with specific questions to ask.

      For example, counsel needs to obtain the dog' history. The owner should be asked the dog's age when the it was obtained, where it was obtained, whether the dog had any medical problems occurring at the time of the incident, and whether the dog was taking any medication? The owner should also be asked about the condition of the dog's teeth and if any were missing at the time of the incident. Other areas of inquiry include the dog's past training and socialization, or lack thereof, its experience with children or people similar to the plaintiff, and any previous aggressive behavior or displays of behavior similar to the kind that caused injury to the plaintiff.

      Ask the owner to describe a typical day in the life of the dog. The owner should provide a chronology of the dog's routine in as much detail as possible, starting from the time the dog arises to the time when it goes to bed. Where does it sleep, where is it fed, at what time of the day is it let outside, how often is it taken for walks, how does it behave on walks, etc. An owner's answers to inquiry about what the dog's life is like, how it spends its day and what it does with its time may lead to further meaningful inquiry.

      Finally,testimony or statements from other individuals familiar with the dog (e.g., housekeeper, groomer, veternarian, trainer, neighbors, delivery people, meter readers, mail carriers, friends who visited the dog,etc.) might prove helpful. Those who knew the dog need to be asked about how the dog behaved when they encountered it, or if they have ever witnessed behavior is similar to the behavior that resulted in injury to the plaintiff.

     Step 4: Collect records from police, animal control, and veterinarian.

      A dog's previous incidences of aggressive behavior might be on record with govemmental agencies. Reports usually are file by animal control or the police soon after a dog-related investigation occurs. In some cities, like Los Angeles, emergency room physicians are required to report all dog bites to animal control authorities. Animal control then contacts the injured person in order to find the dog and its owner. The dog may then be taken from the owner, impounded, or a animal control hearing may be held to determine if the dog should be declared "dangerous".
A record of a dog's conduct may be file with animal control for reasons other than aggressive behavior. Example include excessive barking, running loose in the neighborhood, too many dog on the property, or breeding and selling dogs from the home. Previously filed reorts should be obtained to determine whether they contain anything of significance that bears on issues that have to do with the laws in question. For example, in one case, off-the-cuff remarks made by the defendant about his three adult Rottweilers were entered into a report made by an animal control person who visited the owner's property several weeks prior to the incident. The owner was quoted as saying "no stranger would have the guts to come into my yard." At trial, the plaintiff's attorney used these remarks to convince the jury that the owner probably lied in his deposition when he characterized his dog a being non-aggressive.

      Another source of information may come from special hearings conducted by animal control, often about excessive noise caused by the dog. Hearings may be called because of conflict between the owner and neighbors over the behavior of the dog (e.g., neighbors complain because the dog barks excessively, runs loose in the neighborhood, acts too aggressively, etc.). In these hearings, a hearing officer renders judgment about the validity of the complaint and makes recommendations based on the testimony of the parties and their witnesses. A dog may be vindicated. Alternatively, a dog may be declared dangerous and ordered removed from the owner's home or the owner may be required to imposed restrictions on the dog (e.g., the dog musf be uzzled when walked, or the dog is allowed outside only at certain hours). This kind of information, or lack of it, could be used to substantiate one's belief about what the temperament of the dog was like.

      Last, veterinary records may support or refute arguments about the dog's temperament. For example, usually veterinarians will make an entry into the medical chart if the dog behaved ggressively during examination. The chart may indicate why the dog was euthanized, when certain medical procedures were undeltaken (e.g., neutering) and the kind of medications the dog was taking. There may have been a behavioral basis for using medications (e.g., prozac to suppress celtain kinds of aggression, or other kinds of tranquilizers to suppress anxiety). In one case, it was important for plaintiff's counsel to know whether the dog had ever escaped from the owner's property. The owner denied this. The question was answered by examining the veterinary chart: it showed that the dog was treated for a broken leg as a result of being struck by a car, thereby substantiating the suspicion that the dog had previously escaped from the property.

     Step 5: Inspect the location where the dog was kept or where the incident happened

      In selected cases this may be important because physical evidence can be used to draw inferences about a dog's temperament. For example, in California, vicious and dangerous propensities in dog and actual knowledge thereof may be inferred from evidence pertaining to how the do was kept, what it was used for and the circumstances in which it was maintained, Radoff vs. Hunter, 158 CA2d 323 P2d 202 (1958). Hence, one might argue that a dog possessed dangerous propensities if physical evidence is found suggesting that the dog was regularly chained, or trained for fighting or guard dog purposes. Warning signs such as "Beware of dog" might also imply something a out the character of the dog, although such signs may be used for a variety of reasons.

      The value of a site inspection is illustrate in another case involving a motorcycle and another Australian cattle dog. Th plaintiff's story was as follows: first, the dog aggressively charged him as he was starting his bike. It then chased him through a residential neighborhood for about a quarter-mile. The plaintiff claimed that he attempted to evade the dog by driving as fast as he could. Eventually, he lost control and crashed. The defense did not contest that the dog escaped from its yard and may have harassed the biker just as he was starting his bike. However, the defense argued that it was impossible for the dog to travel as fast and as far as it did in pursuit of the motorcyclist. They believed the dog had nothing to do with the proximate cause of the crash. At trial, I testified that given the distanced traveled (about 1/4 mile), the terrain the dog traveled over, and the speed the plaintiff was traveling relative to the top speed a healthy dog of this breed was capable running, it was likely that the plaintiff's version of the incident was true. According to the plaintiffs attorney, this testimony was helpful in securing a verdict at trial in the amount of $313,000.

Conclusions

      Information gleaned from the above sources may be used to establish or reject the idea that the owner (or keeper) had knowledge about a dog's dangerous behavioral propensities, or that the dog owner or property owner acted with disregard. In any lawsuit, Information gathered from one source may be relatively more important than that gathered from another. In selected instances, if the dog is available for inspection, then a behavioral inspection may prove beneficial. In many cases this is not necessary, however. Circumstantial evidence, such as what people say about the dog, the breed of the dog, the environment in which the dog lived, how the dog was raised and maintained, and the dog's past behavior, can conclusively be used by the animal behavior expert to form an opinion about the foreseeability of the incident, and what the owner or those familar with the dog, must have known about the dog's temperament and behavioral propensities.

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