An issue of contention in many dog bite lawsuits is whether the plaintiff provoked the dog to attack. For example, the defense might argue comparative fault by the plaintiff because the plaintiff provoked the dog to bite. If the trier of fact believes that the dog was provoked then in some states it could potentially mitigate the damages the plaintiff receives.
Provocation is a legal term and not a scientific term that is used in the animal behavior literature. Nonetheless, provocation in a legal sense infers causation and in this sense the term has meaning from an animal behavior perspective. In short, if the plaintiff provoked the dog to bite, then from an animal behavior perspective the plaintiff’s actions were the proximate cause motivating the dog to bite. ((The opinions expressed herein are written from the perspective of an animal behaviorist. These opinions cannot be used to drawl legal conclusions. In any given dog bite case, whether provocation occurred – from a legal perspective – is a decision for the trier-of-fact.))
Animal Behavior Criteria for Provocation
In other sections of this website, animal behavior criteria are discussed regarding the issue of provocation. These included but are not limited to:
- The immediacy of the reaction by the dog
- Was the plaintiff’s action was directed to the dog?
- The motivational state of the dog shortly before the incident happened
- The behavioral history of the dog
- The totality of the evidence, focusing on the circumstances present at the time of the incident.
Generally speaking, the above criteria need to be considered in order to conclude that provocation occurred in any given instance. They are not definitive, however. The various criteria carry different weights which depend on the totality of the evidence in fact pattern from any given case. Hence, the value and significance of these criteria vary from case-to-case and are not necessarily conclusive.
No provocation? – An example
in this incident an 19-year-old female college student was attacked and bitten by Vizsula. The Vizsula is a large-size dog weighing about 80 pounds. Prior to this incident the plaintiff had encountered this dog during her visits to the defendant’s home. On the day of the incident, the plaintiff testified that she was sitting 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 immediately thereafter the dog lunged several feet across the bed and bit her viciously in the face.
At the emergency room, the plaintiff reportedly told the treating physician that she bent over the dog in an attempt to pet the dog. This was noted in the medical records. Plaintiff denies making this statement, however.
Additional discovery showed that the dog had a history of aggressive behavior towards people, had previously growled at the plaintiff and that the dog was a “nervous” individual. Moreover, the dog had not been neutered and had received no obedience training. And shortly before the incident with the plaintiff, this dog had been confined in a crate for about 13 hours.
Can the conclusion be drawn that the plaintiff’s action were provocative? Probably not, based on the totality of the evidence, as stated above. Briefly, the dog had previously acted with hostility towards the plaintiff. Hence, 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 (one important criteria to determine provocation), and the plaintiff’s action was directed towards the dog (another important criteria), but provocation did not happen because the dog was 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 non-aggressive temperament towards other people and was a well-tempered , then a conclusion of provocation could have possibly been made.
Questions about dog bite provocation
Generally, provocation can be defined as a specific action by a person directed to a dog 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. There are exceptions to this general definition, however. The definition should not be taken as a hard and fast rule to conclude provocation happened in any given instance.
Generally, however, 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. 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?). The direction of a victim’s actions is another important element to consider. In most cases, but not always, the victim must direct an action to the dog. And the action does not necessarily have to be intentional.
Generally, certain questions need answering before concluding whether the victim’s actions were provocative. 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? Common gestures or actions that might elicit an aggressive in some dogs 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 significance of any particular action 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 genetics, internal changes caused by medical problems, the use of medications, or differing past experience. 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 considered. Certain kinds of aggression in a dog may be enhanced if the dog is habitually chained or if it is forced into a situation which makes the dog fearful (e.g., examining room in a veterinary hospital).
Various criteria need to be considered in their totality before conclusions are drawn about dog bite provocation. The totality of the evidence always need to be fully taking into account, and fact patterns always differ from case to case. Generally, to summarize, animal behavior analysis must consider 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 addition, the plaintiff’s actions have to be directed to the victim ((However, there are instances where the victim may provoke a dog to attack without specifically directing an action to the dog.)) and be the kind that would cause a dog to experience pain, become threatened, frustrated, irritated or frightened.
There is one important take away in the analysis of dog bite provocation. Namely, It is of utmost important to assess each incident on a case-by-case basis in order to determine whether a dog’s reaction was provoked by the victim.
The interested reader should visit other sections of this website for additional commentary and expert opinion about dog bite provocation.
Richard Polsky, Ph.D is in animal behavior expert located in Los Angeles, California. He welcomes inquiries from attorneys seeking opinions about provocation in dog bite cases.