Dog bite expert & animal behavior specialist

Richard H. Polsky, PhD, CDBC
Los Angeles, California

“Bringing the science of animal behavior to attorneys”

Dr. Richard Polsky - The Dog Expert

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Expert opinion on dog bite law in California & Arizona

In this post, I will  discuss the value of using expert opinion from an animal behaviorist in dog bite litigation, specifically focusing on the states of Arizona and California.   I choose these two states because they are states which have “strict liability” laws for dog bites.   And it is in strict liability states, as opposed to “common law” states, where dog bite expert opinion  can be used to  address the most frequently used legal argument  to counter strict liability laws; namely that of provocation.  As such, attorneys in California and Arizona would benefit from an understanding of how animal behavior expert opinion  can be used to support or reject questions and arguments that often arise in dog bite lawsuits.

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.  Hence,  expert opinion from an animal behaviorist is often beneficial  in determining 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  in other instances may not be as straightforward.  Regardless of  how straightforward  fact pattern may seem,  the totality of 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 dog’s 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.

 Other questions and issues about dog behavior

  • 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.  Expert opinion can be used to specify the  steps the defendant should have taken to prevent the incident from happening.

A word of caution about animal behavior experts!

The animal behavior expert can play a very important role in determining the outcome of dog bite litigation  Attorneys need to be forewarned, however. Attorneys need to realize that self-proclaimed animal behavior “experts” exist (there is no licensing per se in any state). The danger here is that  self-proclaimed experts are usually only marginally qualified  and are likely to offer expert opinion  inconsistent with how dogs  actually behave in real-world settings and inconsistent with the knowledge built up about dog behavior in the scientific literature.

Nonetheless, as long as the expert professes to have experience in dog training or perhaps experience in private  practice as an animal behaviorist, then the expert is likely to be qualified in Court.    I have been told that the Court’s rationale for qualifying a poorly credentialed expert is that is that his/her opinions will be applied to the weight of the evidence rather than disqualification.  Rarely in California are Daubert or Kelly-Fry challenges made.

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 the trier-of-fact and the system of juriprudence.