Dr. Polsky's Mailbag

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Attorneys and victims of dog attacks:

Dr. Polsky welcomes you e-mails, and if time permits, he will attempt to respond to all reasonable inquiries.

Attorneys representing clients are encouraged to phone Dr. Polsky directly. Dog bite victims seeking legal representation should visit http://www.dogbiteattorneys.info

Q. My wife and I recently purchased an investment house to rent in Avondale, Arizona, and have discovered afterward that the next door neighbor has two very aggressive boxers who jump up and hang on to the 6' block fence barking, growling and snarling at me and prospective renters whenever we go into my back yard. The dogs are able to hang on for several long seconds more than chest high. It seems a little bit more exertion on the dog's part could propel them up and over, and consequently, no one will rent this house.

My question is, is there anything I can do besides sell the house at a loss? Anything perhaps added to the fence that can prevent the dogs from getting over, and making prospective renters feel safer. I tell prospective renters about the dogs, and feel if they have children that could be hurt, this is not the property for them. My wife and I could be financially ruined if this situation continues. Perhaps you know of a specific lawyer in Arizona that could help, as well.

Rick Von Dehl, Avondale, Arizona

A. Boxers are certainly muscular dogs and in certain circumstances they can become highly territorial. Given this, I can well appreciate how a Boxer might have the ability, strength and aggressive propensities to jump high enough and then hang on to the top of a 6 ft. block wall for the purpose of locating a target to attack.

Considering that there are two dogs and considering their likely temperamental features, from what you described, this certainly presents a liability risks for the landlord of potential renters. It probably also presents liability issues for the owner of the dogs or the property owner of the location where the dogs reside. In my opinion this is dangerous condition. Steps should be taken to alleviate this danger.

Recently I just finished consulting on a dog bite case in Los Angeles where a similar situation existed. In this case, the dogs involved were adult, male pit bulls, however. The incident in questioned happened when one of these pit bull dogs leaped over a six-foot block wall and grabbed an 11 y.o boy who was probably leaning up against a wall. This pit bull dog, who had a history of aggression near this wall towards children playing on the other side, could well have jumped high enough so that it was able to hang onto the top of the wall thereby allowing it position itself so that it could to grab the child by the shoulder. In fact, this pit bull not only attached itself to the child's shoulder but it then pulled the child over the wall into the yard where it lived. After this happened, it was mauled not only this pit bull but also by a another male pit bull who resided in the same yard. Needless to say this boy was severely mauled. He was lucky to survive. He was rescued by his his mother and another adult who luckily heard the noise of the attack. They quickly responded and jumped into the adjacent yard where the boy was yanked and pulled the child to safety. During the rescue these adults were also attacked by the dogs.

This case settled very favorably for the plaintiff. In my opinion, based on the particulars in this case, the defense argument this case was weak: namely, the dog did not have the ability to scale the wall to pull the child over. Instead, they felt the child may have been sitting on top of the wall rather than leaning against it, thereby provoking the dog to attack.

If I were you,I would talk to people at animal control to see if they could do something effective to convince the dog owner or owner of the property where the dogs reside that steps need to taken immediately to alleviate the situation. If the situation remains as is, then obviously you have the responsibility of informing prospective tenants of the danger that exists.

Q. My dog seriously bit a young lady (18 years old) several months ago. The dog was a 100 lb, 5 year old Rottweiler that had never bit anyone seriously in the past (she had nipped people occasionally, but done nothing more than break the skin).   My mother warned the young lady not to put her face near the dog's face if she heard the dog growling. While standing on our front porch, the young lady stepped on the dog's paw. The dog growled loudly. The young lady bent down to kiss the dog and say she was sorry. As she was kneeling down over the dog, it turned upward and snapped at her, ripping off much of her upper lip. We had the dog put down immediately.  

My question for you is this: From the information given, do you feel that the attack may have been provoked? That is, because the young lady both stepped on the dogs paw, and then leaned down over the dog, Do you feel that the young lady may have provoked the accident? 

Jonathan Block, Hillsboro, MO

A. Provocation is a viable defense in many cases provided certain conditions are met. Generally, the defense must establish that the dog in question was of good temperament with no previous history of aggressive responding relevant to the context in which the incident took place. Second, the behavior of the victim immediately preceding the attack needs to be scrutinized. In other words, what exactly did the victim do to the dog immediately before the attack took place. Next, one has to look at the dog's behavior. The argument for provocation become stronger if the dog was in a non-aggressive state, and non aroused, immediately prior to the attack. In your particular case, I would need to assess your Rottweiler's temperament to determine if your dog was provoked by the actions you described undertaken by this 18 year-old girl. The usefulness and believability of a defense of provocation varies from case to case. Note also that provocation is a legal term and not one used in the scientific literature of animal behavior. Finally, you should look at a short article I published in California Lawyer Magazine which mentions citations to case law relevant to this issue.

Q. I am a 2nd year law student at the University of Saskatchewan College of Law. A number of my peers and I have been having a hypothetical discussion regarding a dog suspected of being responsible for the mauling of a child. The dog has died prior to trial. The question involves the relevance of a picture of the dog at trial. Is the relevance of the picture at trial solely that of aiding the victim in identifying the dog? As you are the internet expert on dog attacks, your opimion would be greatly appreciated.

Nicholas M. Cann, Student at the University of Saskatchewan College of Law

A. A photograph of the dog involved in the incident is always a smart piece of discovery to enter into evidence. Certainly the photo can be used for identification purposes - although one needs to realize that many dogs look alike. Introduction of a photo of the dog cannot address issues about the dog's temperament. Probably the main value of having a photo, aside from identification purposes, is to allow the jury to get a feel for what the dog looked like and this may help in their decision making processes. For example, if it was a large size dog then the jury could well understand how extensive injury to the victim happened.

A. I have no problem with home quarantine provided that it is done in a manner and that is not detrimental to the dog. Certainly, it is preferred to quarantine in the shelter where often a dog may deteriorate both mentally and physically. Owners with potentially dangerous dog need to be educated in effective strategies for dog bite prevention. The American Medical Veterinary Medical Association recently published the findings of their task force and it addressed this issue in detail. You might want to consider summarizing their findings, make photocopies for distribution, and then pass the photocopies onto owners who you feel need the guidance. (AVMA Task Force on Canine Aggression and Human-Canine Interactions. A community approach to dog bite prevention. JAVMA 2001; 218: 1732-1749. (pdf download).

My interest in dog bites, which can be described as intense, stems mainly from my concern for chained dogs.I had been a volunteer in a local humane society for 4 years, when I made the decision to enlarge my experience in animal welfare by becoming a municipal animal control officer for the next six years .  In that capacity, I witnessed the tragedy of chained dogs first hand. 

Since that time I have continued work in various areas of animal welfare as a volunteer, including chairing a municipal task force to revise a local animal control ordinance.  While I was assembling materials for the task force study, I became more acutely aware of the connection between chaining and the potential for chained dogs to inflict serious or even deadly bites on humans.  While my task force work has been completed and a revised ordinance was adopted in 1999, my interest in discouraging the practice of dog chaining and its endangerment to humans continues.

Clova Abrahamson , Bartlesville, OK

A. I too believe that there is a connection, in many instances but not all, between habitual chaining and attack propensities in dogs. Are dogs chained because they are already aggressive by nature or does chaining promote certain kinds of aggression? This is a question that needs to be determined on a case-by-case basis.

Q. The problem occured directly in front of my parents home which I was visiting. My mother had taken the dog out to go to bathroom, then handed the dog to me on his leash. A couple walked by, and I restrained my dog as he got excited. My smother had accidentally looped his leash on the wrong ring, so he broke free (which isn't hard to do if it is improperly attached) and ran over to the couple. At this point, I didn't see exactly what happened, but apparently my dog grabbed the woman's fur coat, and her husband kicked him to get him to release it, at which point he bit the back of her leg. After he kicked him twice more, he got scared and ran off down the street. My wife and I then retrieved him.

A police report was filed, but I currently live out of state, so I am not sure what will happen next. The victim had never seen my dog before. My dog does get excited when he is on his leash, but has never bitten anyone before. Please let me know your
thoughts.

Chris Finlan, Doylestown, PA.

A. In Pennsylvania, strict liability for dog bites does not exist and therefore you would be liable for the injuries inflicted to this person provided that you had sufficient knowledge that your dog could engage in the kind of behavior that led to the injury of this person walking past your property.

It sounds as though you knew that your dog would get excited but it may be more questionable if you knew this dog could bite. For my perspective, since the incident happened in Pennsylvania, if the plaintiff decides to bring legal action against you, the burden would be on him to demonstrate that your dog had the propensity to act to the way it did in the context in which the incident occurred. Another issue certainly has to do with the way your mother put the leash on to the dog - certainly she was probably negligent in this regard.

Q. I have enjoyed your site, it has been informative. I have an observation I would like to make about all the sites that deal with dog bites and dog attacks, that is the lack of any meaningful solution, except one. I have found a site that offers a solution not only to reducing the number of dog attacks but will reduce the number of dogs turned over to shelters or veterinarians to be destroyed because of behavioral problems. For the safety of our children and the welfare of our dogs visit http://www.safek9safekids.co.nz/

James Webster

A. I appreciate your interest in my company's web site. Dogexpert.com it is not intended to offer solutions to the dog bite problem, particularly as it is directed towards children. Nevertheless, this is very important information for parents to have, and I agree with you that the majority of sites out there on the Internet are not very useful in this regard. I have looked at the Web site you suggested and feel that it it warrants inclusion as a link on dogexpert.com. Thank you very much for this information.

Q. I am the Director for an Animal Control Shelter.  I am by no means an expert on behavior, but I have had extensive training.  I would like your opinion (would not be used in litigation as there is none)....If a dog attacks the back of a person's head with no provocation, should that be a concern for future behavior?  I know when dogs want to kill they go for the neck or the stomach.Could this ever be considered normal behavior?Any information you can give me would be appreciated,

Sincerely,

Alisa R Haller, Cedar City Animal Control, Cedar City, UT

A. Certainly any attack by a large dog - a dog that is capable of inflicting serious damage - if it is done without provocation needs to be taken seriously. It really does not matter where the attack is directed to the person's body, although obviously an attack to the head of an adult human can do more damage in most cases than an attack to the chest or head of a person.

You should also note that there is no scientific validity to the belief that dogs have a natural inclination or innate propensity to bite at the neck area of a person during an aggressive episode. Dogs are group living predators and as such have not developed a strong propensity to attack the nape of a victim's neck like cats have. Domestic cats are solitary hunters and because of this there has been selection pressure to develop a neck bite so that they can kill in a quick and efficient manner. Not so for dogs - dogs have been developed from wolves which are a highly social group living species who depend on others to help in the killing of prey.

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