In this post, I will briefly discuss how dog bite law interfaces with the opinions an animal behavior expert might proffer in a dog bite lawsuit. The interface between the two is intricate, and it is worth stating the obvious; namely, the only reason why people get bitten by dogs is because of the behavior of the dog. Hence, attorneys in California and Arizona (states which have strict liability laws for dog bites) attorneys would benefit from an understanding of how animal behavior expert opinion might be used to support or reject the arguments of dog bite law.
In states with long-standing laws specifying strict liability for dog bites, successful recovery for the plaintiff may be contingent on establishing one or more of the following: the defendant-dog owner was strictly liable; the defendant-dog owner had prior knowledge about the dangerous propensities of the dog; the defendant-dog owner or landlord acted negligently with respect to the manner in which the dog was managed, and last negligence per se (usually leash law violations).
Was the owner strictly liable?
A key provision in strict liability law deals with the issue of provocation. In order for the plaintiff to prevail, the plaintiff must prove that his/her actions was not provocative to the dog. What constitutes provocation is not straightforward, however. There is no legal definition for the term. Whether provocation occurred in any given instance varies from case to case. Usually opinion from an animal behaviorist is necessary to determine whether provocation occurred.
Previously, I have offered guidelines which, with exceptions, may be applied to most dog bite instances. Generally, in most instances assessment of the dog’s temperament has to be made along with the circumstances surrounding the incident and how the dog reacted to the behaviors from the plaintiff directed to the dog. Provocation may happen if the dog immediately responds with aggression due to behaviors directed to the dog by the plaintiff. For example, a case for provocation could be made if person (and not a young child) approaches a passive Golden retriever and without invitation thrusts their face into the face of the dog. In this instance, provocation may have happened.
However, unlike the example above, determining whether provocation occurred in any given instance is not straightforward. The circumstances surrounding the incident must be carefully considered along with the temperament of the dog, and it’s past behavioral history. Temperamental analysis is determined by many factors, some of which include breed tendencies and circumstances affecting the dog’s behavior at the time of the incident. For example, the hormonal status of the dog, it’s medical condition, and the dogs previous social behavior in different kinds of contexts. Findings from animal behavior science tells us that dog behavior is contextually driven. Hence, it becomes very important to consider the context in which an incident occurred.
Prior knowledge of a dog’s propensities?
An argument that usually benefits the plaintiff is that the defendant-dog owner knew about the dog’s dangerous nature. This might be established if the dog is of a certain breed and has a proven history of acting aggressively or biting people in contexts similar to the context in which the incident happened. However, defendants are apt to deny prior knowledge about the dog’s dangerous nature. If this be the case, then with sufficient conclusive circumstantial evidence, an animal behaviorist might opine that the dog possessed dangerous propensities and that the owner/landlord should have known about these tendencies. Circumstantial evidence that the animal behavior expert could draw upon to form opinions about the dangerous nature of the dog include the breed of the dog, statements from neighbors and others who knew the dog, veterinary records, previous relevant complaints to animal control, how the dog was maintained, it’s gender, the dog’s reproductive the medical history, and if the dog was kept away from strangers who visited the property.
Negligence by the dog owner or landlord?
Negligence is any action or lack thereof by the plaintiff or landlord that proximately allowed the dog bite incident to happen. Negligent actions frequently deal with defendant’s failure to do something; for example, failure to remove a dangerous dog from the property, failure to lock a gate, failure to repair a fence that was in a state of disrepair, or failure to adequately control or supervise a dog in a given set of circumstances. Animal behavior opinion can be used to specify the steps the defendant should have taken to prevent the incident from happening.
A word of caution!
Because of the manner in which dog bite law is written in states such as Arizona and California, input from an animal behaviorist may be useful. Animal behavior opinions could benefit either the defense or plaintiff. Much depends on the fact pattern of the case. Attorneys need to be forewarned, however. Attorneys need to realize that many self-proclaimed animal behavior “experts” exist, particularly in California and Arizona where the standards for qualification in court is lax. Rarely in California are Daubert or Kelly-Fry challenges made.
In most cases, as long as the expert professes to have years of experience in dog training (which is usually difficult to substantiate), then it is likely that they will be qualified in court by the judge. However, dog training differs from animal behavior. I know of one self-professed expert in southern California who for years, in my opinion, has bamboozled attorneys. A competent animal behaviorist can be judged through completion of coursework in animal behavior resulting in a graduate degree, a publication record in scholarly peer-reviewed animal behavior journals, and certification from an established organization dealing specifically with the study of animal behavior. Anything less brings potential incompetence into the court room and is a disservice to trier-of-fact and the system of juriprudence.