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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Intoxicated Victims & Dog Bite Provocation

Dog bite expert opinion
In any given incident the totality of the evidence has to be considered to determine if the victim’s intoxicated state and erratic behavior provoked a dog to bite.

Companion dogs  have the ability to accurately read nonverbal social and emotional cues from humans.  This is a trait that has developed as a result of the domestication process, and one that benefits both man and dog alike.

Moreover, normally socialized dogs usually have expectancies in terms of the social cues they are likely to receive from humans in a given context.  So, for example, a dog expects to receive a particular set of nonverbal cues from its owner when it is reunited  after period of absence.

Dogs also have certain expectancies, based largely on past experience and learning, about the kind of nonverbal cues they receive from strangers they encounter. If there is incongruence between the social cues from a person a dog receives with what the is expecting, then a dog will predictably react in a manner to reduce the incongruence. Behaviors which the dog may undertake to reduce the incongruence include fleeing from the person or even attacking a person.

Many examples can be given with respect to a victim’s behavior in dog bite lawsuits.  However, for the purpose of this article,  relevant here are the nonverbal social cues an intoxicated person sends to a dog.  Specifically, when humans are intoxicated they often act erratically, therefore the kind of nonverbal behavior they are delivering to a nearby dog is likely to be incongruent with its expectancies. And when this happens, the dog may react to the person with defensive aggression, particularly if the dog has no route of escape.

As an animal behavior expert, I have been called upon in dog bite lawsuits to opine about how an intoxicated person may affect dog behavior.  However, I mentioned a dog bite case in San Diego California where factor of intoxication may have played a part in causing the incident.

In this instance, the plaintiff, a 19-year-old lady, was at a party in the defendant’s home.  At some point to during the party, partygoers moved from the outside to the inside of the residence, and sometime after this the plaintiff needed to smoke a cigarette. She decided to move to another part of the house in order to do this.  She intended to enter a closed bedroom in the house to do this, but mistakenly entered through the closed door of the garage were a pit bull was being kept.  Soon after she entered the garage, the pit bull attacked her face.  At the time of the incident, she was legally intoxicated with a blood-alcohol level of approximately .189 ( measured at the emergency room about four hours after the incident happened).

From an animal behavior perspective, it is conceivable that her actions, particularly her erratic nonverbal behavior towards the dog may have been provocative, and therefore may have played a part behind the impetus of this dog’s attack.  Apparently, the defense did not raise this issue.  At trial, the plaintiff contended that the defendant’s were strictly liable under the California dog bite statute and that the plaintiff’s actions towards the dog were not provocative.  Defense, on the other hand, argued contributory negligence on the part of the plaintiff.

The defense may have argued for contributory negligence for the wrong reason.  Namely, the plaintiff  negligently entered through the wrong door because she was intoxicated.  I believe a stronger argument potentially could have been  that her erratic nonverbal movements and behavior caused by her intoxicated state may have been provocative to the dog. However this is speculation on my part, because I was not involved in this case and I do not know the fact patterns that led up to the incident

Nonetheless, from a behavioral perspective, different criteria need to be assessed before stating with a reasonable degree of professional certainty that the plaintiff’s actions were provocative, particularly when alcohol is involved. For example, the nature of the act by the plaintiff, the nature of the dog, the socioenvironmental context in which the incident happened and the totality of the evidence in any given case have to be taken into account.

In general, the dog’s response has to be an immediate reaction to the plaintiff’s actions. and in most instances the actions of the victim have to be directed to the dog, but there are exceptions. There should be little evidence of similar kinds aggression in similar contexts displayed by the dog in the past. Moreover, generally, the plaintiff’s actions have to be of the kind that caused a dog to experience pain, become threatened, irritated or frightened.

In any given dog bite lawsuit, the above mention factors interact with each other and have to be assessed on a case-by-case basis in order to determine if a dog’s reaction to the plaintiff actions was foreseeable, predictable or provocative.


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