Dog Bite | Animal Behavior Expert Witness For Attorneys

Richard H. Polsky, Ph.D. CDBC
Los Angeles, California

“Bringing the science of animal behavior to attorneys”

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Dog Bite Provocation | Animal Behavior Expert Opinion

An issue of contention in many dog bite cases is whether the plaintiff provoked the dog to attack. Defense will argue provocation by the plaintiff happened because if the plaintiff provoked the dog to bite, then this might mitigate damages because of the plaintiff’s comparative fault.

Provocation is a legal term and not a scientific term. Nonetheless, provocation infers causation and in this sense the terms have similar meanings. In any given dog bite case, if one concludes that the plaintiff provoked the dog to bite, then this similar to saying that the plaintiff’s actions with the proximate cause of the dog’s attack.

Understanding causation of behavior is a central concern in the science of animal behavior. In real-world situations, there are usually a myraid of factors that must be considered when rendering an opinion about the reasons which caused a dog to inflict serious dog bite injury to a person. Previously, I wrote about the criteria required to conclude that any given action by the plaintiff towards a dog was provocative in nature. These included:

(A) The immediacy of the attack by the dog;

(B) If the plaintiff’s action was directed to the dog;

(C ) The motivational state of the dog before the attack happened.

Each of the above elements must be present in order for an act of provocation to occur.

To illustrate this point, I will use an incident that involved an attack by a Hungarian Vizsula dog on an 18-year-old female, college student. Prior to this incident the plaintiff had briefly encountered this dog during her visits defendant’s home. During these prior visits there was no meaningful interaction between the dog and the plaintiff. The incident happened when the plaintiff invited to the home by her friend after partying in the early morning hours. Alcohol was consumed by the plaintiff but it was uncertain if she was intoxicated. The plaintiff testified that she was sitting alone on the bed in her girlfriend’s bedroom, the dog entered the room and jumped up on the bed. She testified that she reached out to pet the dog on its head, and then immediately thereafter the dog lunged several feet across the bed and bit her severely in the face.

At the emergency room, the plaintiff supposedly told staff the treating physician that she bent over the dog before petting it, and the rotation of this was entered into the emergency room records. Plaintiff denies ever making this statement, however. Nevertheless, defense counsel that her interaction with the dog was “provocative”. Prior to the incident, members of the defendant’s family testified that other relatively unfamiliar people had visited the home and encountered the dog and there were never any problems.

Other discovery also showed that this dog had a history of aggressive behavior towards other people, had growled at the plaintiff when she arrived at her girlfriend house, and the dog was an excitable, “nervous” individual. This Vizsula dog had not been neutered and was not obedience trained. Moreover, prior to the interaction with the plaintiff, this dog had been confined in a crate for approximately 13 hours.

Using this case history, can the conclusion be drawn that the plaintiff’s action were provocative to this dog? Probably not, because the dog had previously acted aggressively towards her, and therefore the motivational state of the dog at the time the incident happened must have been affected by this previous aggressive encounter. Granted, the dog’s reaction was immediate, and the plaintiff’s action was directed towards the dog, but provocation did not happen because the dog was likely not void of aggressive tendencies towards the plaintiff. Had there been an absence of aggression by this dog towards the plaintiff, and if the dog historically had possessed a nonaggressive temperament towards people, then a different conclusion could have been made.

Provocation may be defined as any action by a person which causes the dog to immediately engage in a response that is motivationally different from the response it was engaged in just prior to the action of the person . In other words, the person’s actions must immediately cause a radical change in the dog’s behavior. Causation may be inferred by the immediacy of the change. A dog’s motivational state is derived from what animal behaviorists refer to as a motivational analysis. The analysis of a dog’s motivational state is based on factors which include assessment of its temperament, the behavior of the dog immediately before and after the incident, the context in which the incident took place, and factors related to the dog’s past experience (e.g. has the dog ever display this kind of behavior in the past?) or its current medical condition (e.g. did a painful medical condition exist?).



Questions about dog bite provocation

Very generally, whether provocation occurred in any given instance depends on whether the action of the plaintiff directed to the dog could have foreseeably could have elicited an aggressive response from the dog. Certain questions need answering before concluding whether the dog’s aggression was a foreseeable event given the plaintiff’s behavior. I will list these questions below. The relative weight given to each question in determining whether provocation occurred will vary from case-to-case.

(a) What did the plaintiff do to the dog?

What were the exact actions of the plaintiff toward the dog the moment the incident occurred? The behavior of the plaintiff hours or minutes prior to the incident also needs to be assessed. Was the dog’s reaction something one would have expected given its temperament, breed characteristics, or past experience? Did the dog overreact in response to the plaintiff’s actions? Often the motivational basis of a dog’s aggression is one of dominance, fear, predation, or protection. It other cases, pain may be involved. Animal behaviorists know that pain can immediately trigger be conditioned to previously neutral features in the dog’s environment, such as a person, thereby causing the dog to respond with aggression for no apparent reason.

Other common gestures or acts that could easily elicit an aggressive reaction from a dog include quickly invading the dog’s personal space, kicking or bumping into the dog, intentionally thwarting an ongoing activity in which the dog is engaged, and even an apparently innocuous act like petting or kissing a dog. Not all dogs react in a similar fashion. Therefore, the merits of arguing provocation will vary from case to case.

(b) What was the dog’s temperament?

One needs to assess the temperament of the dog. Tremendous differences exist between dogs in terms of the likelihood of reacting with aggression as a result of a supposedly provocative act. Some dogs have a hair-trigger response while others do not. Individual differences might be due to genetic differences between breeds, internal changes caused by medical problems, the use of medications, or differing past experience. Whether an act can be construed as provocation therefore depends, in part, on the history of the dog and its hereditary make-up. Generally, the argument for provocation is stronger if the dog in question does not have a history of behaving behaving aggressively in a given context and belongs to a breed not known for its aggressive tendencies (e.g., Golden retrievers, Labrador retrievers).

(c) In what context did the incident occur?

The context in which the incident happened needs to be assessed. For example, many dogs are more likely to respond with aggression when they are in their own territory. Certain kinds of aggression in a dog may be enhanced if the dog is habitually chained, if it is in the presence the presence of the owner or if it is forced into a situation which it doesn’t like (e.g., examining room in a veterinary hospital).of other dogs.

In sum, from a behavioral perspective, different criteria need to be assessed before conclusions are drawn about dog bite provocation. The totality of the circumstances always need to be fully taking into account. These include the nature of the plaintiff’s act towards the dog, the dog’s behavioral history and temperament, and the socio-environmental context in which the incident happened. In general, the plaintiff’s actions have to be of the kind that would cause a dog to experience pain, become threatened, frustrated, irritated or frightened. These factors interact with each other and must be assessed on a case-by-case basis in order to determine whether a dog’s reaction to the plaintiff’s actions was foreseeable and predictable.  Other sections of this website contain more information about dog bite provocation.

As noted above, it needs to be understood that this writer was not involved in this case and therefore does not know the fact pattern of the case or exactly how the plaintiff may have been behaving after she entered the garage.  Hence, the above opinion, although based on animal behavior science, must remain speculative.  Nevertheless, it is raised here to illuminate the possibilities of how the behavior of intoxicated person, who is unfamiliar to a dog, may cause a dog to attack through erratic, provocative behavior brought on by intoxication.

Additional animal behavior questions that may have not been weighed heavily at trial concern the temperament of the dog, why the defendants elected to isolate the dog in the garage, and why the door to the garage was not locked, thereby preventing partygoers from entering the garage unexpectedly.  No animal behavior expert was called at trial to address these issues.

The plaintiff required plastic surgery on her lip and chin.  The jury awarded $7,500 in past medicals, $15,000 in future medicals, and $97,500 in non-economic damages.  The total award was $120,000.  The jury was 9-3 in favor of liability on part of the defendants.  Case caption is Morales v. Medina, San Diego Superior Court-Vista (Case number 37-2011-00555607).  The verdict was rendered in January 2013.  The incident occurred in 2009.  The plaintiff’s 998 demand was $300,000.  The defendants offered $85,000 to settle the case.



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