Florida dog bite attorneys occasionally need services and opinions of a Florida dog expert witness.
Below, I present the fact pattern and results from a dog knock-down lawsuit in which the the central liability issue was one of provocation by the plaintiff.
The fact pattern of this dog knock-down lawsuit
An adult golden retriever knocked-down a frail, elderly lady. This elderly lady her hip. The incident happened in a quiet residential community in the suburbs of Jacksonville, Florida. I have firs-hand knowledge of the fact pattern of the case because I served as an expert witness for the defense in this matter.
The plaintiff was injured not because she was bitten by a dog. Rather, to restate, she was knocked-down by a super friendly Golden retriever. Hence, strict liability laws in Florida for dog bites did not apply to this case.
The dog involved was a large, 80 pound Golden retriever. The victim was a 78-year-old lady with pre-existing medical conditions. (( Discovery revealed that the plaintiff had neuropathy in her legs.))
Expert opinion on provocation
Expert opinion about provocation as a defense in dog-bite injury lawsuits has been discussed elsewhere on this website. Questions about provocation were central to defense arguments the current case. In this matter, the defense needed expert opinion about whether this elderly lady provoked the Golden retriever to jump on her and knock her to the ground.
Undisputed facts were as follows: The defendant-dog owner was walking his adult golden retriever, Dakota, on a retractable leash. The neighborhood in which Dakota was being walked consisted of single-suburban family homes. Dakota had been walked in this neighborhood on hundreds of occasions previous to the incident. There were never any problems during his encounters with unfamiliar people during his walks. Dakota temperament was that of a typical 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. However, his jumping-on-people was specific to this context . Dakota had never jumped on a stranger while being walked in the neighborhood. Dakota was obedience trained. And, as stated, he was an exceptionally well-tempered Golden retriever.
On the day of the incident, the defendant was walking Dakota in the usual manner, and the plaintiff, a person who had never encountered Dakota previously, approached and bent down towards Dakota. Dakota about 5-7 feet away, sniffing the ground. He lastly did not noticed the plaintiff until she something to the effect “oh, what a pretty dog”. Dakota’s reaction was immediate. He quickly approached the plaintiff, raised himself on his hind legs and then placed his paws on the plaintiff’s chest. The actions of Dakota caused the plaintiff to fall. She sustained a separated shoulder and she injured her hip.
Provocation, canine knock-down and Florida strict liability laws for dog bites
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…”
The jury considered the following questions: Did the plaintiff’s actions provoke Dakota to jump and were her actions careless given the totality of the circumstances?
Three animal behavior criteria were used to determine if provocation occurred. Namely, (a) Did the plaintiff direct an action to the dog? (b) Did Dakota react immediately to the plaintiff’s action? (c) Did the plaintiff’s actions cause a motivational change in the dog?
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 motivation changed from one of exploring and sniffing the ground to approaching the plaintiff and jumping on her. In short, from an animal behavior perspective this incident would have never happened if the plaintiff had not invited social interaction from Dakota.
The jury rendered a defense verdict. The jury found the plaintiff 100% at fault. 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, plaintiff’s counsel argued that the defendant was liable because he did not immediately control Dakota when he first noticed the plaintiff from a distance. However, the judge ruled that negligence by the defendant was not an issue for the jury.
The defense verdict was based on the plaintiff’s provocative actions directed towards Dakota. The jury concluded that her actions were careless given the totality of circumstances in which the incident occurred. The jury concluded that the plaintiff chose to interact with Dakota and, given this, she should have known that she could be injured. From my perspective in animal behavior, the plaintiff extended a social invitation to a large dog she did not know. Before extending this invitation, given her age and medical condition, she should have known that Dakota might approach, possibly jump on her, and knock her down.
This case also demonstrates that a dog knock-down injury can result in serious injury. Usually, the context in which this happens is not in a residential area as in the current case, but rather in the home environment towards unfamiliar who will enter into the dog’s territory or at times towards strangers in an off-leash dog park.
Florida case law is sparse with regard to provocation in dog-related injury cases cases. Nonetheless, this issue frequently arises in dog bite litigation in Florida given that Florida is a “strict liability” state. I direct the reader to an external website as it pertains to Florida dog bite law. ((also see Law in Broward County as it pertains to animals, including dogs.))
Richard Polsky, Ph.D. has been retained as a dog expert witness for Florida dog bite attorneys on about a dozen occasions. Attorneys in Florida should contact Dr. Polsky to determine his availability.