Florida dog bite attorneys occasionally need a Florida expert witness on dogs to opine about provocation in dog bite lawsuits. I present an example of a dog bite lawsuit in which the principal issue was a provocation by the plaintiff. This case also shows how being knocked down by canine can cause severe personal injury.
I served as an expert witness on dogs for the defense. An adult golden retriever knocked-down an elderly lady. She fell and injured her hip. The incident happened in a quiet residential community in the suburbs of Jacksonville, Florida.
Significantly, the injury inflicted on the plaintiff was not the result of a dog bite. The plaintiff was not bitten by a vicious dog. Rather, she was knocked down by a super friendly Golden retriever. Hence, strict liability laws in Florida for dog bites did not apply.
In the incident described below, the dog involved was a large, 80 pound Golden retriever. The victim was a 78-year-old lady.
The fact pattern of this dog knock-down lawsuit
Expert opinion about provocation as a defense in dog-bite injury lawsuits has been discussed elsewhere. In the current instance, the principal liability question was straightforward. Did the plaintiff provoke the dog to knock her down?
Undisputed facts presented to the jury were as follows: The defendant-dog owner was walking his golden retriever, Dakota on a retractable leash. The neighborhood consisted of single-suburban family homes. Dakota was typical of many golden retrievers: well-tempered, friendly and equally affectionate to family members and strangers.
Dakota had a history of jumping on people when they entered the home. He had never jumped on a stranger while being walked prior to the incident, however. Dakota was obedience trained. He was an exceptionally well-tempered dog.
Dakota had been routinely walked using a retractable leash on hundreds of occasions without incident. Dakota had never jumped on a stranger in the context of being walked. On the day of the incident, the defendant was walking Dakota in the usual manner, and the plaintiff, a complete stranger, approached and bent down towards Dakota. She said something like “oh, what a pretty dog”. She was about 4 feet away.
Dakota’s reaction was immediate. He quickly approached the plaintiff, raised up and placed his paws on the plaintiff’s chest. This caused her to fall. She sustained a separated shoulder and an injured hip.
Provocation, canine knock-down and strict liability laws in Florida
Section 767.04, Florida statutes reads:
- “No owner of any dog shall be liable for any damages to any person… when such person shall… carelessly provoke… the dog inflicting such damage…”
Thus, the questions before the jury were straightforward: did the plaintiff’s actions provoke Dakota to jump on her and were the actions of the plaintiff careless? in this regard, expert witness testimony on dogs from a Florida dog behavioral specialist was needed.
Expert testimony was given a trial by Dr. Polsky. He opined about an animal behavior definition for provocation. Three questions were critical to determining whether provocation occurred: (a) Did the plaintiff direct a behavior(s) to the dog? (b) If so, did the dog react immediately? (c) Did this cause the dog’s behavior to change?
All three criteria were met. Namely, the plaintiff’s actions were directed to Dakota. Dakota immediately reacted by approaching the plaintiff and jumping on the plaintiff. Third, Dakota’s behavior changed from one of exploring and sniffing the ground to approaching the plaintiff and jumping on her. The incident would have never happened if the plaintiff had not engaged in extending a “social invitation” to Dakota,
The jury rendered a defense verdict. The jury found the plaintiff 100% at fault. She was awarded no money. The plaintiff’s counsel did not present a viable argument to counter the defense of provocation. Instead, in the absence of any dog expert witness testimony, he argued that the defendant was liable because he did not immediately control Dakota after he noticed Dakota approaching the plaintiff. However, the judge ruled that negligence by the defendant was not an issue the jury needed to consider.
The defense verdict was based on the plaintiff’s provocative actions Dakota. The jury concluded that her actions were careless given the context in which the incident occurred. The plaintiff chose to interact with the dog knowing that she could be injured. Expert witness opinion on dog behavior helped the jury understand that the plaintiff’s actions were provocative.
Note the plaintiff was a 78 y.o lady with neuropathy in her legs. She was medically compromised. Therefore is understandable why the jury reviewed her actions as inappropriate: She extended a social invitation to a dog she did not know. Before extending this invitation, given her age and medical condition, she should have considered the possibility that Dakota might approach, possibly jump on her, and knock her down. She knew that Dakota was a large-size dog.
This case also demonstrates that knock-down injury caused by a dog can have serious consequences. Usually, the context in which this happens is not in a residential area as in the current case, but usually in an off-leash dog park.
Florida case law is sparse with regard to provocation in dog bite injury cases. Dog bite provocation is a frequent issue in dog bite litigation in Florida. In the current instance, expert witness testimony on dog behavior proved to be beneficial for the defense.
I direct the reader to other pages on this website about dog behavior and dog bites as it pertains to Florida dog bite law.
Richard Polsky, Ph.D. has been retained as a dog expert witness for Florida dog bite attorneys on many occasions. Attorneys in Florida should contact Dr. Polsky to determine his availability to serve as an expert witness on dog behavior and personal injury caused by dogs.