The outcome of a dog bite case in Hawaii caught my interest, given that I am a practicing dog bite expert witness for attorneys in Hawaii.
Below, I share the details of this case with my readers. The case was one of negligence. That is, one of the main issues before the jury was one of negligence; that is, the improper handling by the owner of a Rottweiler.
Of interest to me as dog expert was that punitive damages in this case were raised. The plaintiff alleged that the defendant acted with despicable disregard for public safety. This claim was ultimately supported by the jury. This resulted in an award of $500,000 for the plaintiff. ((Dog expert witness testimony is provided by Richard Polsky Ph.D. for attorneys in Hawaii involved in dog bite litigation. Dr. Polsky has consulted with and has been retained as an expert by personal injury attorneys in Hawaii attorneys on multiple occasions. Animal behavior issues which Dr. Polsky can opine about include those dealing with provocation, negligence, standard of care and if the subject dog possess dangerous propensities.))
This incident happened in Kahala, Hawaii. In 2005 the defendant was walking her 100 lb. Rottweiler, along with several other dogs, off-leash on Kahala Beach. At some point, the defendant lost control of her Rottweiler and Rottweiler attacked a toddler. He knocked the toddler to the ground and then grab the toddler in his mouth. Fortunately, a former University of Hawaii football player was nearby, came to the rescue, and forced the Rottweiler to release the boy by punching the dog in the head.
At trial, the defense maintained that the injuries to the toddler were not severe, that the dog was docile and not aggressive by nature, and that the Rottweiler had never bitten a person before. The defense also argued that the owner was unaware that her Rottweiler would act in such a manner, and that the incident was unforeseeable.
These arguments were not convincing, however: The jury returned the largest award in a civil case in Hawaii for a dog bite case: $500,000 in punitive damages and $356,000 for compensatory and medical damages for the plaintiff. The plaintiff appealed, but the result of the appeal is not known by this author at the time of this writing. ((See Tomooka v. Bereday))
Overview: Punitive damages in dog bite lawsuits
Those readers not familiar with the dog bite law should note that a claim for punitive damages in the dog bite cases usually only made when gross negligence is alleged. In such instances, the plaintiff usually argues that the defendant/dog owner acted with a “despicable disregard” or a “conscious disregard” for public safety.
Given this, the burden is on the plaintiff to produce evidence that supports this argument of a conscious disregard for public safety. Often this means collecting discovery to prove that the dog had bitten a person previously or that the owner was reckless in the manner in which the dog was cared for and managed. Depending on the fact pattern of any particular case, previous instances of dog-on-dog aggression usually cannot be used to support the belief that the dog possessed dangerous propensities towards humans.
What may have sealed the fate for the defendant was the totality of the evidence the jury considered: namely, the defendant had been cited once and was warned on at least five different occasions to keep her dog on a leash! She ignored these warnings. One of these warnings in fact came from the Hawaii Humane Society. It’s also likely that the jury was sympathetic to the victim given that he was a child, and they may have taken into account the reputation of Rottweilers for their supposedly aggressive nature.