In this article Nevada dog behavior expert, Richard Polsky, PhD opines about the collection of evidence to substantiate or refute the notion that the defendant had knowledge about a dog’s dangerous propensities. The collection of meaningful discovery is particularly important states that have no strict liability for dog bites, such as Nevada.
The key question is whether the owner of the dog know enough about the dog’s behavior to foresee that it might cause injury to a person? Questions like these are frequently asked in dog bite lawsuits. Adequate answers to these questions can usually be obtained by collecting meaningful information during discovery. How should the dog bite attorney go about doing this? Hence, in this article, as a dog behavior expert, I proffer expert advice to dog bite attorneys about the discovery collection techniques needed to obtain information to support or reject arguments about liability.
Step 1: Identify the dog
Essential information to collect include the breed of the dog, its age, sex, size, name, and coat color. Any distinguishing physical features of the dog (e.g. unusually large ears) should be noted. Information should be gathered referencing the dog’s physical appearance at the time the incident happened. Discovery is always undertaken after an incident has occurred. Hence, it is possible that the suspected dog may not look the same. For example, the length of a dog’s coat can easily change giving it a different appearance.
Information about a dog’s identity is obviously important if uncertainty exists about which dog bit the plaintiff. Blaming the wrong dog can happen. Take the case where the plaintiff intervenes in a dog fight. A typical scenario is as follows: the plaintiff is out walking his dog when suddenly another dog charges and attacks his dog. The plaintiff, fearing harm to his dog, physically intervenes in an attempt to stop the fight and in the process is bitten severely. However, the defense may argue that the plaintiff’s own dog inflicted the bite. If uncertainty exists about which dog inflicted injury then the plaintiff may not be able to rely upon statutory strict liability laws for recovery purposes.
Step 2: Examine the dog
A behavioral exam aims to determine whether the dog was capable of displaying behavior similar to the behavior that caused injury to the plaintiff. The exam should be conducted under circumstances similar to the circumstances that existed when the incident occurred. If the circumstances cannot be realistically recreated then the dog’s reactions to certain procedures from a handler may be used to infer the behavioral tendencies of the dog.
Results from an animal behavior examination could prove to be important if the plaintiff and defense maintain different versions of how the incident happened. Two cases illustrate this point.
In the first, the tip of the plaintiff’s index finger was bitten-off. The plaintiff claimed that the incident 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 extended against the wall. He heard the neighbor’s dog barking on the other side of the wall moments before the incident happened. The next thing he remembers was that the end of his finger was missing. His contention was that the dog had jumped and in a flash severed his finger.
The defense became suspicious of this account because there was no blood in the area. Moreover, the owners of the dog were adamant that their dog was not capable of engaging in such an act. The dog had never bitten a person before. The dog was was an older, medium size, family-oriented dog. The defendants made the dog available for inspection. The inspection focused on: (1) the height of the wall relative to the height of the dog when he was fully outstretched against the wall; (2) the dog’s jumping ability (tested with a delicious food treat held above his 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 its head clear the wall to reach the hand of the plaintiff. Subsequently, a settlement was achieved based partially on this information.
The second example involves a motorcyclist. The plaintiff claimed that he was attempting to evade the pursuit of the defendant’s Australian cattle dog this caused him to crash. The defense questioned his account. At the time of the incident, the owner of the dog said that his dog was standing next to him in the front yard that he never left the yard as the motorcycle was passing in front of his property. The defendant testified that the dog did eventually leave the yard to approach the fallen motorcyclist only after hearing the clamor of the crash.
Plaintiff’s counsel questioned the defendant’s version. The plaintiff argued that the inherent herding tendencies found in Australian cattle dogs made it likely that the subject dog chased the motorcycle and caused the plaintiff to crash. Did this dog have the propensity to chase motorcycles? No witnesses could be found indicating that they had ever been the dog chasing motorcycles.
The defense needed an answer to a critical but straightforward question: Did this particular dog possess the tendency to chase motorcycles? The exam of the dog was setup to simulate the conditions as they existed at the time of the incident: The dog was unrestrained in its yard, its owner was nearby, it was approximately the same time of day and the weather was the same. Animal behavior testing consisted of having a similar type of person on a similar type of motorcycle passing the property at the speed the plaintiff said he was traveling when he encountered the dog. Testing was recorded unobtrusively on video for later analysis. The results of this exam clearly showed that this dog had no inclination to chase motorcycles. This lawsuit settled favorably for the defensed based partially on these results.
Dog bite attorneys need to be cautious because not all cases require a behavioral examination. For example, I know of one animal behavior expert who I believe will insist on a behavioral examination principally to “run the clock”. The need for a behavioral 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 gleaned from an exam. On the other hand, if the dog is alive and if the expert fails to examine the dog then this may undermine subsequent opinions he proffers before a jury. Generally, if enough circumstantial evidence is available which speaks to the temperament and behavioral history of the dog, then results from an appropriately conducted exam may not add much to animal behavior expert opinion.
Step 3: Gather testimony from people who know the dog
In the absence of a behavioral exam, knowledge about the dog’s behavior may be gleaned from what people say about the dog. Those who knew the dog, especially the owner, need to be questioned. Questioning should focus on the dog’s temperament, its past training, how it behaved in specified situations (e.g., how it reacted to strangers entering the home), and if the dog had ever displayed behavior similar in kind to the 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 he or she has a behavioral expert provide them with specific questions to ask. First, counsel needs to obtain the dog’s 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 at the time of the incident, and whether the dog was taking any medication. Medical records from the veterinarian should be obtained. 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, its experience with children or people similar to the plaintiff, and any previous aggressive behavior or displays of behavior, particularly those similar to the kind that caused injury to the plaintiff.
In deposition testimony the owner should be asked 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 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 often lead to further meaningful inquiry.
Moreover, collecting information from significant others may prove to be helpful (e.g., a maid, groomer, veterinarian, trainer, neighbors, delivery people, meter readers, mail carriers, etc.). Those who knew the dog need to be asked about how the dog behaved when they encountered it.
Step 4: Collect records from police, animal control and the veterinarian
A dog’s previous incidences of aggressive behavior might be on record with governmental agencies. Reports are usually filed 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 incidences to animal control. Animal control may investigate and contact the injured person and the dog owner. In Los Angeles, a dog may then be taken from the owner, impounded, or a dangerous dog hearing may be held.
A record of a dog’s conduct may be on file with animal control for reasons other than aggressive behavior. Examples include excessive barking, running loose in the neighborhood, an excessive number of dogs on the property, or breeding and selling dogs from the home.
Previous reports should be obtained to determine whether they contain anything significant. For example, in one lawsuit, 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 an event that led to the lawsuit. 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 dogs as “pussy cats”.
Another source of information may come from dangerous dog hearings conducted by animal control. In these hearings, a hearing officer listens to testimony from both sides and then 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 must be muzzled 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 the temperament of the dog.
Last, veterinary records on the dog may support or refute arguments about the dog’s temperament. For example, most veterinarians will make an entry into the medical chart if the dog behaved aggressively during examination. The chart may indicate why the dog was destroyed, when certain medical procedures were undertaken (e.g., neutering) and the kind of medications the dog was taking. There may have been a behavioral basis for using medications. In one case, it was important for plaintiff’s counsel to discover 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. Based on this information, plaintiff’s counsel surmised that the dog had escaped and was hit by a car after it had run into the street.
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 a dog and knowledge thereof may be inferred from evidence pertaining to how the dog 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 showing that the dog was regularly chained, or trained for fighting or as a guard dog. Warning signs such as “Beware of dog” may also suggest something about the character of the dog or how the dog was used by the owner.
The value of a site inspection is illustrated by another case involving a motorcycle and another Australian cattle dog. The plaintiff’s version was as follows: first, the dog aggressively charged him as he was starting his bike. It then chased him through a residential neighborhood for over a quarter-mile. Eventually he lost control and crashed. 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. A site inspection was required to measure the route the dog took while in pursuit of the motorcycle. At trial, I testified that the plaintiff’s version was credible given the distanced traveled (about 1/4 mile), the terrain the dog traveled over, and the speed the plaintiff was traveling (20 to 30 mph) relative to the top speed a healthy dog of this breed was capable running (40 mph).
Information gleaned from the above sources can be used to establish or reject the idea that the owner (or keeper) had knowledge about a dog’s dangerous behavioral propensities. In any dog bite lawsuit, information gathered from one source may be relatively more important than information gleaned from another source. In selected instances, if the dog is available for inspection, then a behavioral inspection should be undertaken. In many cases this may not be needed, however. Circumstantial evidence can be used to form animal behavior expert opinion about whether the incident was foreseeable and what the owner knew about the dog’s temperament and behavioral propensities.