Example #1 - Dog bite in California
A 73 y.o.female defendant was walking her Weimaraner on the sidewalk when the plaintiff and her daughter, both riding bicycles, approached from behind. They attempted to pass the defendant on her right side. As the plaintiff attempted to pass the owner, the dog leaped at the plaintiff and bit her severely on the left leg. The defense retained Dr.Polsky to render an opinion as to why the dog acted aggressively and if the defendant could have anticipated aggressive actions on the part of her dog. Based on the discovery material, Dr.Polsky's concluded: (1) the owner was in control of the dog and could not have known that an attack was likely, and (2) the actions on part of the plaintiff startled dog which in turn prompted the attack.
Example #2. - Dog bite in California
The plaintiff was 25 y.o male plumber. The incident occurred on the grounds of a plumbing supply outlet where the plaintiff had gone to purchase parts for one of his customers. As he entered the premises he approached an employee who was feeding the company's pit bull terrier. The plaintiff completed his approached to the employee and stopped approximately 2 feet away from her and the dog. Immediately after he stopped, the pitbull growled and attacked the plaintiff causing severe injuries. Did the plaintiff act in a manner to cause the dog to attack? Was the employee negligent in feeding the dog during business hours?
Dr.Polsky was retained by the plaintiff's attorney to render opinion regarding: (1) The probability of an incident like this happening given (a) the dog's the breed of dog in question, (b) the circumstances surrounding the attack, and (c) the way the dog was maintained by the plumbing supply house, and (2) if the plaintiff acted in a manner to provoke the attack.
Example #3 - Dog bite in California
Dr. Polsky was retained as a defense expert in this case. The incident occurred at a dog kennel where the defendant had taken his male Doberman for boarding. He entered through the main entrance with his dog on leash and approached the main counter where he was greeted by the plaintiff (the owner of the kennel). Information exchange, paper work, etc. then occurred between the plaintiff and defendant for about 5 minutes. During this time the plaintiff remained on the customer side of the counter with his dog sitting quietly by his side on a leash. After the paper work was completed, the plaintiff walked from behind her side of the counter to the front of the counter where the defendant was standing with his dog. As the plaintiff approached, the dog leaped at the plaintiff and bit off a large portion or her nose. Dr. Polsky was asked to evaluate the circumstances that provoked the dog to act aggressively and to express an opinion regarding the assumption of risk of the part of the plaintiff given the breed of dog in question and the behavior of the plaintiff as she approached the dog.
Example #4 - Dog bite in California
In the case of Schweibish v. Bender, Dr. Polsky retained jointly as a expert by plaintiff's attorney and the insurance carrier to determine whether the plaintiff was bitten by his own dog. Dr. Polsky's assignment was to provide feedback to both parties so that litigation could be avoided.
The incident unfolded as follows: The plaintiff's male Great Pyrenees became engage in the dog fight with a husky dog shortly after each dog entered the park. During the fight, the plaintiff claims that he was kneeling down on the left side of his dog and restraining him with his left arm around the chest of the dog. His right arm was pulling back on the neck of his Pyrenees. Both the husky dog and the Great Pyrenees were growling and snarling at each other from a distance of approximately 5 ft. Moments later, another dog enetered the picture. According to the plaintiff, a female Rottweiler, charged from a distance and attacked the right arm of the plaintiff.
Essentially, the question in this case became one of determining which dog bit the plaintiff. Was it the husky dog, the Rottweiler dog, or the Great Pyrenees owned by the plaintiff? The plaintiff insisted that his dog did not inflicted the injury. On the other hand, the defense, which represented the interests of the owner of the Rottweiler, did not feel the bite was inflicted by their dog. The owner the husky moved from the area shortly after the incident and consequently and could not be located for follow-up investigation.
In his assessment, Dr. Polsky took the following factors into consideration: the temperament of the dogs (determined in part by a behavioral examination) and the positioning of each dog relative to the plaintiffs' right arm at the time the incident happened. Moreover measurements were taken of puncture wounds on the plaintiffs arm, and these were carefully matched with the width between the upper canine teeth in the Rottweiler and Great Pyrenees. Click here for the report detailing Dr. Polsky's findings.
Example #5 - Knock-down case in dog park in New Jersey
The plaintiff was knocked down and severely injured by a rambunctious, playful eight month old, 110 lb. English mastiff. No bite occurred but the plaintiff broke her leg due to the impact of this exceptionally large dog. Dr. Polsky was retained by plaintiff's counsel. Questions Dr. Polsky addressed in this action with concern the danger a dog of this size presented to people in the context of a dog park, and whether the owner maintained this dog under reasonable supervision during the time it was in the park.
Example #6 - The San Francisco dog mauling case|
Dr. Polsky was retained behavioral expert for the defense in this well-known case which drew national attention. The victim, lesbian Diane Whipple, was mauled to death by her neighbors massive Preso canario dogs in the hallway of her apartment in January 2001. The case caused outrage in San Francisco's gay community. The Grand Jury indicted the female defendant, Marjorie Knoller, on second degree murder charges based on a theory of implied malice. Manslaughter charges were also brought against both Knoller and co-defendant, Knoller's husband, Robert Nowell. Dr. Polsky consulted with defense attorneys on such matters as to the dangerous nature of the dogs in question (the dog were named Bane and Hera) and whether it was foreseeable to Knoller that these dogs would kill a person (i.e. the main issue supporting a second degree murder charge). Polsky did not testify at trial but he did testify in an evidentary hearing about the alledged sexual activity the defendants had with their dogs. A web site authored by Dr. Polsky discussing the issues in this bizarre case should be available for viewing shortly (http://www.sanfranciscodogmauling.com) .
Example #7- Fatal dog mauling in South Carolina
Dr. Polsky was the behavior expert for the defense in this case which involved the fatal mauling of a disabled man on his way to a Seven-Eleven store about 4 a.m. in the morning. A pack of dogs were probably involved in the attack. The prosecution argued that two of these dogs, both pit bulls, were owned by the defendant. The incident happened about a quarter-mile from the defendant's home. The defendant says his dogs were in his house at the time of the incident. Behavioral issues in this case centered on the temperamnent of the defendant's dogs and the likelihood they were involved in the attack. Dr. Polsky testified at trail. The defendant was acquitted of manslaughter charges. Click here for a newspaper story about this case. Click here for the defense attorney's follow-up correspondence to Dr. Polsky.
Example #8 - Fatal dog mauling in Wyoming
Dr. Polsky was retained as a consultant by defense attorney Travis Smith,Esq. of Cody, Wyoming. (State of Wyoming v. and Shine, et. al., 2002)
The case involves the mauling death of 1 y.o. child by a reproductively intact male Rottweiler. The incident happened as follows: The child was left unattended in the front yard of its home, directly across from where the defendant maintained the subject Rottweiler on a chain attached to her trailer. The chain was long enough to allow the Rottweiler proximity to the street.
The incident happened when the child wondered from its yard into the street, thereby coming within reach of the Rottweiler. The child was attacked, although there were no witnesses as to how the attack actually started. Two construction workers passing in their truck noticed a Rottweiler on a chain eating some object. On closer examination they realized that the dog was in fact feeding on a human. They immediately intervened. The dog resisted. Soon after, police were summoined and when they arrived they employed pepper spray and were able to remove the dog from a severly mauled child.
The owners, who were neighbors residing directly across the street in a trailer, were charged with involuntary manslaughter. Prosecution pressed charges on the belief that the owners had full awareness of the dangerous nature of their Rottweiler. Prosecution further believed that the owners acted in a manner to abet this dog's aggressive nature towards people. The basis of these arguments rested on statements from neighbors who said the dog was aggressive and that the owners intentionally instilled aggression in the dog through starvation. At the time of the incident the dog was significantly underweight.
Dr. Polsky, as a consultant for the defense, reviewed evidence pertinent to several questions: (1) Was there sufficient evidence to suggest that this Rottweiler dangerous by nature; (2) Did the owners intentionally act in a way to enhance or promote this dog's aggressive nature; (3) Did the owners act recklessly in maintaining this dog chained on their property?
The defendants acknowledged that the dog would growl at unfamiliar people but they had no reason to believe the dog would go beyond these warning displays. The dog had never attacked anyone prior to the incident and there were no complaints on record with animal control. The defendants acknowledged that they kept their Rottweiler for protection and for this reason they kept it chained in their front yard. They deny ever starving the dog to make it aggressive.
The defense argued that it was not foreseeable that a one-year-old child (who could not read a dog's warning signs and have the common sense to move away from an aggressive dog on a chain), would wander off her property, cross the street, and move into the area near the chained Rottweiler. The defense argued that the actions of their clients - despite the fact that they maintained an aggressive dog on a chain for protection - did not rise to level of criminal negligence. Discovery in this case revealed that at the time of the incident the mother was doing laundry and the father was sleeping. The mother placed her child in the front yard to play with the belief that the gate to her fenced front yard was closed.
Several weeks prior to trial a plea-bargain was reached. Manslaughter charges were dropped in favor of misdemeanor charges and probation. Click here for a news story about the case. Click here for a news story on the outcome.
Example #9 - Fatal dog mauling in California
Dr. Polsky was retained as an prosecution expert in a case that involved fatal mauling of the seven 7 year-old boy by two Rottweiler mix dogs. The defendant in this case was an ex-police officer who the maintain these two dogs, along with another Rottweiler dog, on his property in the town of Red Bluff, a rural community in Northern California.
The incident happened when the victim entered the backyard of the property adjacent to the defendants. A chain-link fence separated the defendant's yard from the yard where the boy had entered. The Rottweilers were loose in the defendant's yard. It was unclear why the boy entered the yard. At the time his father was outside across the street in front of his own home chopping firewood. It was established that the defendant's chain link fence was in need of a repair and this allowed the dog to slip under the fence and attack the victim. This attack was eventually stopped by the victim's father wo came running from across the street after hearing a commotion.
Discovery in this case revealed that the subjects dogs had been loose in the neighborhood previously and according to witnesses displayed aggressive behavior towards them. There were however no previous accounts that these dogs had ever and no complaints had ever been filed with animal control.
Issues in this case centered around the temperament of these dogs and whether the defendant knew about his dog's aggressive tendencies. Another key issue was a reckless manner in which the defendants maintain these dogs (e.g..the chain link fence in need of repair). At trial, Dr. Polsky testified that given the nature of these these particular Rottweiler dogs, the fact that they had repeatedly been loose in the neighborhood running together as a pack, and the fact that had terrorized other neighbors, it was likely that an attack on a child, such as the victim in this case, was foreseeable. Prosecutor in this case, District Attorney, Gregg Cohen, had been involved in other dog mauling cases. He is best known for the impetus in formulating California's "Cody's Law." Cody's Law makes it a felony to own a dog with vicious propensities that a severely injures or kills a person. In this particular case, the defendant was found guilty of manslaughter and the lesser felony of owning a mischievious dog that killed a person. Click here for news story describing Dr. Polsky's testimony at trial in this case. Click here for a news story on the outcome.
Example #10 - Fatal dog mauling in Wisconsin
Dr. Polsky was retained by the prosecution in this case which involved the fatal mauling of a 10 y.o. girl by six Rottweilers. The incident happened when the owner of the dog went on an errand leaving her daughter and victim alone with the dogs. Dr. Polsky reviewed evidence pertaining to whether the defendants (e.g. the dogs owners) had sufficient knowledge to know that their dogs were dangerous. The case was resolved prior to trial. Click her for newspaper accounts of this case.
Example #11.- Civil rights case involving a police dog in San Diego
Dr. Polsky served as the expert for the plaintiff. A central issue raised during trial (San Diego Federal Court, October 2003, Flores v. City of San Diego) was whether the victim, a 60 year-old male recently released psychiatric patient who was in a florid paranoid state at the time of the incident, had the ability to thrust his arm forward in stabbing motions towards the police officer before being shot to death. The victim had a pair of 8" scissors in his hand and, according to the police officer, the victim was thrusting his arm forward in an effort to stab the police officer who was directly in front of him.
Dr. Polsky testified as to whether the victim could act in such a manner given the fact that the police dog was latched onto his upper arm. Polsky testifued that given the probable force of this dog's bite (easily above 1000/lbs.sq.in) and its highly aroused aggressive state, there was no way the victim could have made stabbing motions towards the police officer when.the dog (a male Beligan melinois) was latched onto an biting the victim's arm. Polsky testified that an arm in this dog's mouth was much like having it in a vice.
Plaintiffs' attorney argued that the use of gunshot was therefore grossly excessive considering the circumstances, and that the victim was shot because he posed more of a threat to the dog (i.e.stabbing the dog with a sissors) than to the police officers.
At trial Polsky also testified about the strong attachment that forms between police handlers and their service dogs (hence a reson to protect their dog from harm) and the role in which police service dogs might best be used. The latter concerns those functions which police dogs perform better than man due to their superior sensory or motor abilities, such as sniffing out narcotics or chasing a fleeing suspect. Using police dog to subdue a victim by force may not be desirable when other alternative methods for apprehension are readily available. Click here for a copy summarizing Dr. Polsky's opinions in this case. Click here for a news report about the outcome.
Example #12 - Fatal dog mauling in Illinois
This well-publicized case involves the fatal attack by several pit bull mixed dogs on a female jogger in Dan Ryan Park in Chicago in January 2003. The case is currently in litigation. Dr. Polsky was retained by plaintiff's counsel to address issues in this case that fall within his expertise as an applied animal behaviorist. Details about the issues in this case will be posted when resolution to the case is reached. Click here for a newspaper account of the mauling.
Example #13 - Negligence by Petco Store in California
Petco is a multimillion-dollar American company with hundreds of stores throughout the United States. This company is a very visable part of the approximately 5-billion dollar pet industry here in the United States (the new San Diego Padres basball stadium has been named Petco Field). Petco maintains retail outlets that sells merchandise and supplies to pet owners. In addition, they offer dog training classes, dog grooming services and hold adoptions in many stores where dogs and cats are put on display to Petco's patrons.
This case involved an unmuzzled, adult male Jack Russel, named Jimmy, who been brought to a San Diego area Petco store for bathing/grooming. While being bathed Jimmy inflictied serious facial bites to the Petco groomer. Click here for photo of the injury. Dr. Polsky was retained by the defense for the dog owners.
Jimmy had been to the Petco store on previous occasions for grooming. There supposedly were never any problems with him. The groomer, in turn, was relatively new to the job, and was still in the process of leraning how to bath/groom dogs. She had been hired by Petco with no grooming experience whatsoever. Her strongest qualification was that she loved dogs.
The groomer filed suit against the dog owners under California law which calls for strict liability against the owners of a dog if their dog bites a human. Despite this law, one viable argument for the defense in many dog bite cases is assumption of risk. Despite the potential strength of an assumption of risk argument for the defense of the dog owners, the dog owners in the current case brought a complaint against Petco for the negligent manner in which they managed, trained, and provided instruction in safety to this groomer. The strategy of defense for the dog owners was to shift blame for the attack to Petco.
Defense counsel believed that Petco allowed a relatively inexperienced groomer to handle a dog she supposedly did not know at all, and they failed to provide this employee-groomer with sufficient training in animal behavior so that she might have recognized the dog was in distress which may have allowed her to terminate the bath which in turn would have prevented the attack (e.g. knowing how to read a dog's body language).
In short, defense counsel for the dog owners believed that by not initialting proper safety steps or procedures with regard to their groomers, Petco put their groomers in harms way way due to the inherent danger some dogs present in a grooming situation (e.g. they will bite). A central issue in this case for Dr. Polsky forcused on the predictibility of dog behavior in a grooming saloon of a Petco strore. That is, can dogs in grooming situation always be predictable? If they cannot always be predictable, then why did PetCo fail to encourge or insist that its groomers utiliize muzzles for their own protection, or initiate other safety precautions - such as better training in animal behavior - for dogs they did not know that well? It was suspected (although not established in the documentation provided by Petco) that Petco actually discouraged the use of muzzles becuse using them would project an unfavorable image to their customers!
As it turned out, this case settled favorably for the owners of Jimmy several months after Dr. Polsky was retained. Litigation did not proceed to the point where Dr. Polsky's deposition was needed. Plaintiff's counsel dropped the case after it was learned that the dog - on the day before the incident - acted aggressively to the plaintiff and this was documented in Petco records - hence, the risk she assumed ruined her chances for recovery.
richardhpolsky@mac.com
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