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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No provocation when man bites dog in Arizona

 

The appropriateness of a bystander’s intervention to stop a fight between two dogs depends on a number of factors, such circumstances present, the severity of the fight, Arizonathe relationship between the dogs and bystander, the size difference between the dogs, and readily available external objects one might use to stop the fight.

Fights between dogs are common, and nearby bystanders often choose to intervene despite the risks involved. Methods utilized to stop a dogfight include physically separating the dogs, hitting the dogs with a blunt object, squirting the dog with a hose or pouring water over the dog, prying open the dog’s mouth, pulling the dog away by its back legs, and use of a weapon such as a gun or knife.

In a 2011 dog bite case in Arizona, the plaintiff chose a rather unorthodox method of stopping the attack of by the defendant’s dog, a powerful 75 pound adult male Chesapeake bay retriever mix, on a 12 pound female daschund. His method consisted of biting the Chesapeake Bay retriever on its neck!

The “fight” happened when the defendant/owner brought her Chesapeake Bay retriever to a Fourth of July barbecue hosted by a neighbor, and upon entry onto the subject property, her dog encountered the resident daschund and immediately snatched the dog in its mouth and began shaking it. A nearby bystander (the former owner of the dog) attempted to stop the attack by first attempting to wrestle the Chesapeake Bay retriever away from the daschund, and then he tried prying open the mouth of the dog. These attempts failed, and the plaintiff then bit the Chesapeake Bay retriever on its neck, and immediately the dog released the daschund, but then the dog bit the plaintiff on his right wrist. His injury, although apparently not severe at the time, became infected and the plaintiff subsequently required surgery.

The plaintiff sued the dog owner under the theories of negligence and Arizona’s “strict liability” law for dog bites. The defense countered with one of the few viable defenses available under Arizona dog bite law; namely, that plaintiff’s action of biting the Chesapeake Bay retriever on its neck was provocative in nature.

The case proceeded to trial, and the issues before the jury were several; namely, (1) Was it appropriate for the plaintiff to intervene to stop the fight?; (2) Did the plaintiff provoked the dog by biting him in the neck?; And (3) Was the defendant negligent for bringing her dog to a Fourth of July barbecue where she knew her dog might encounter other unfamiliar dogs?

The defense argued that there were other less provocative methods available to stop the fight, other than biting the dog in the neck. The defense also argued that the attack was likely to stop on its own, and therefore there was no need for intervention by the plaintiff. The defense position also assumed assumption of risk on the part of the plaintiff.

On the other hand, the plaintiff introduced evidence indicating that the Chesapeake Bay retriever had previously been returned to a shelter on 2 occasions because of its tendencies to skirmish with other dogs. The defendant also testified that during the time she had owned the dog, it had aggressive encounters with other dogs on walks. The plaintiff also raised the issue of the appropriateness of the behavioral tests utilized the behavioral expert for the defense. For example, this animal behavior expert intentionally left out behavioral tests designed to assess the aggressive reactivity of the defendant’s dog to other unfamiliar dogs.

The plaintiff prevailed in this matter. The jury concluded that intervention by the plaintiff was necessary, that defense behavioral expert should have tested the aggressive tendencies of the defendant’s dog, the defendant used poor judgment in bringing her dog to the barbecue, and that the plaintiff’s unusual means of stopping the attack was not provocative.

An important consideration in this matter was the nature of the action the plaintiff directed to the dog in his attempt to stop the fight.  Namely, he inflicted a bite to the neck of the dog.  And this action in itself was no different from the behavior the dogs were directing towards each other.  Hence, the jury concluded that his action was not provocative.  If however, the plaintiff was clubbing the dog, or hosing the dog, behaviors distinctly different from biting, then the jury may well have concluded that the action of the plaintiff was provocative.  In any given instance, particularly with reference to a person’s intervention in a dog fight, provocation is assessed by taking into account the action the plaintiff directed to the dog along with the proximity between the dog and the plaintiff at the time of the incident.  In other instances, factors such as the motivational state of the dog and the totality of the circumstances that gave rise to the incident need to be carefully considered.  Provocation is determined on a case-by-case basis.

Last, it should be noted that one issue presented to the jury in this case is common found in many dog bite lawsuits; namely, does the plaintiff assume risk of being bitten when trying to stop a dog fight?  The verdict in this case suggests that a jury will be sympathetic to the argument that intervention by an owner is justifiable even if it carries risk of being bitten.  However,  in this particular case most jury members were dog owners, and therefore probably somewhat sympathetic to the plaintiff’s arguments. aablackdoghead