Was the dog bite provoked? If this is suspected than a defense of provocation can be used counter strict owner liability under California’s dog-bite statute. Counsel for the defense should always question whether provocation was the impetus behind an attack by a dog in a lawsuit that invokes the dog-bite statute. Willfully invited injury because of a provoked dog bite is one of the strongest defenses to counter liability. In California and Arizona, for example, if provocation can be established, a plaintiff’s recovery may be reduced in proportion to his or her contributory fault.
Appellate rulings on dog bite provocation
There are a few California cases that have looked at the issue of provocation and in these cases the fact pattern did not support a defense of provocation. For example, the court ruled that crouching over a dog to pet it was not provocative (Smythe v Schacht (1949) 93 CA2d 315). Likewise reaching down to pet a dog (Ellsworth v Elite Dry Cleaners (1954) 127 CA2d 479), or giving a dog food (Burden v Globerson (1967) 252 CA2d 468) were deemed non-provocative acts by the plaintiff.
However, appellate rulings from courts ruled that the plaintiff’s actions were provocative the nature. For example, an Illinois court ruled that a two-year-old child’s stepping on the tail of a normally non-aggressive Dalmatian was provocative (Nelson v Lewis (Ill App 1976) 344 NE2d 268). And in Arizona, provocation happens regardless of the intentions of the plaintiff since provocation depends on whether the action caused the animal to react (rather than on the intent of the actor) Toney v Bouthillier (Ariz App 1981) 631 P2d 557.
In California, the age of the plaintiff is a factor in determining whether the dog bite victim provoked the dog. For example, see Greene v Watts (1962) 210 CA2d 103 (young child may not be capable of assumption of risk or contributory negligence in dog-bite case) or the ruling in People v Berry (1991) 1 CA4th 778 (a child under the age five is not legally capable of acting with reasonable care towards a dog).
Was the dog bite provoked? Animal behavior expert opinion
Whether provocation happened in any given instance is determined by the totality of the circumstances. Similar actions affect dogs differently, and any given action will not necessarily provoke an attack by a dog. Appellate courts can rule on legal definitions about provocation. However, ultimately whether provocation occurred is a question about animal behavior because the actions of the dog are the substance of the matter. It is important that each dog bite instance be evaluated on a case-by-case basis. Animal behavior expert considers factors which include:
- The nature of the act by the plaintiff
- Breed characteristics
- The past behavioral history of the dog
- The context in which the incident occurred
What constitutes provocation, is often unclear, however. It is here where expert opinion from an animal behavior expert can be effectively used by an attorney. A dog bite expert can opine about the kinds of situations which might be provocative to a dog, given the temperament of the dog and the circumstances under which the injury happened.
Certain questions need answering to determine the dog’s aggression was a foreseeable event given the plaintiff’s behavior. I will list these questions below. The relative weight given to each question in determining whether provocation occurred will vary from case-to-case.
Questions about dog bite provocation
(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? Did the dog overreact in response to the plaintiff’s actions? Often the motivational basis of a dog’s aggression is one of dominance, fear, predation, or protection. It other cases, pain may be involved. Animal behaviorists know that pain can immediately trigger be conditioned to previously neutral features in the dog’s environment, such as a person, thereby causing the dog to respond with aggression for no apparent reason.
Other common gestures or acts that could easily elicit an aggressive reaction from a dog 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 merits of arguing provocation 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 genetic differences between breeds, internal changes caused by medical problems, the use of medications, or differing past experience. Whether an act can be construed as provocation therefore depends, in part, on the history of the dog and its hereditary make-up. 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 assessed. For example, many dogs are more likely to respond with aggression when they are in their own territory. Certain kinds of aggression in a dog may be enhanced if the dog is habitually chained, if it is in the presence the presence of the owner or if it is forced into a situation which it doesn’t like (e.g., examining room in a veterinary hospital).of other dogs.
In sum, from an animal behavior perspective, different criteria need to be assessed before conclusions are drawn about dog bite provocation. The totality of the circumstances always need to be fully taking into account. These include 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 general, the plaintiff’s actions have to be of the kind that would cause a dog to experience pain, become threatened, frustrated, irritated or frightened. These factors interact with each other and must be assessed on a case-by-case basis in order to determine whether a dog’s reaction to the plaintiff’s actions was foreseeable and predictable.
Did the plaintiff provoke Labrador?
As an example, below I describe a lawsuit in which I testified as an K9 expert at trial. The defense argued that the plaintiff was comparatively at fault because she provoked the dog.
The dog in question was a seven-year-old reproductively intact male Labrador retriever named Sader. There was no evidence to indicate that Sader had ever bitten, growled, snapped or showed hostility to any person prior to the incident. The incident happened at a birthday party at the dog owner’s residence in July, 2012. There were about 15 partygoers, most in their 20s. Most were drinking, some may have been intoxicated, but this issue was not raised at trial. Moments before the incident happened Sader was resting on the bed next to his owner in a studio type living space. About 8-10 people had gathered in this location. Some were playing beer pong. There is no indication of any hostility between any person. There was no indication that Sader was under stress or discomfort.
According to the plaintiff, an attractive lady in her 20s, she was standing close to the side of the bed. The plaintiff testified that she leaned towards Sader in an attempt to pet him. However, she could not complete her actions because, according to the plaintiff, just as she started to bend Sader lunged several feet through the air and inflicted a single, serious bite to her face. The plaintiff testified that her face was at least several feet from the face of Sader at the time of the bite. Plaintiff’s counsel argued that the bite happened because Sader was being “protective” of its owner.
In contrast, the defense argued that there was sufficient evidence to conclusively prove that the plaintiff provoked the dog by teasing him with food. At least four people, all neutral witnesses to the incident, testified that the plaintiff had food in her mouth and her face was very close to the face of Sader immediately before the bite was inflicted. These witnesses testified that the plaintiff appeared to be teasing and taunting the dog with food. One witness also testified that the plaintiff was roughhousing with the dog’s ears. However, there was also other testimony that was conflicting in that some witnesses placed Sader and the plaintiff in different locations. However, significantly, the testimony of the plaintiff and the defendant dog owner was consistent in that each placed the plaintiff next to the bed and Sader on the bed next to the owner.
The plaintiff denied that she had food in her mouth or that she was taunting a roughhousing with the dog, however. Defense argued that it was implausible that Sader, who was resting comfortably on the bed, possessed the physical or motivational capability too suddenly lunged in a horizontally and upward direction through several feet to bite the face of the plaintiff. This in itself this was compelling behavioral evidence to indicate that the plaintiff’s version was implausible and that she must have provoked Sader by taunting him with food (frustration induced aggression).
Throughout the duration of the party, up to the time of the incident, Sader was friendly towards people, frequently taking food from them. In fact, partygoers , including the plaintiff herself, testified that prior to the incident, they engaged Sader in actions identical to those actions by the plaintiff when the incident occurred. That is by bending over him and petting him on the head! Another credible witness, who was standing next to the plaintiff, testified that minutes before the incident happened he leaned over Sader and petted him on the head in exactly the same manner attempted by the plaintiff! These actions by the other partygoers undermines the validity of the plaintiff’s testimony. Moreover, Sader had been in attendance at parties before in similar circumstances and there were never any instances of aggression or complaints about his behavior. Given this fact pattern, from an animal behavior perspective, the defense firmly believed that the plaintiff must have provoked the dog. Nonetheless, as stated above, plaintiff’s counsel argued that the incident happened because Sader was acting “protectively” of his owner.
However, from an animal behavior perspective this made no sense because the actions of the plaintiff were (1) directed to Sader (and not his owner) and (2) the nature of the plaintiff’s actions were benign rather than hostile. The so-called animal behavior expert for the plaintiff (a dog trainer by profession who worked part-time as a car salesman) testified that the mere proximity between the dog and the owner was sufficient to conclude that Sader must have been acting protectively.
At trial, this expert even conceded that the plaintiff’s actions were directed towards the dog and not the owner. This expert also appeared to ignore the fact that Sader had never acted protectively over its owner in the past (that is by growling, snarling, snapping, etc.). Hence, he concluded the dog bite was not provoked.
The jury came back with with a verdict in favor of the plaintiff. They assigned no comparative fault by the plaintiff. The amount of the award was not disclosed, but it was higher than what the defense offered during settlement negotiations ($40,000).
Defense counsel felt that the jury, a relatively uneducated group from a farming community in central California, “wanted to give the plaintiff some money”. Defense counsel was told that at least several or more jurors appeared disinterested and that they ignored jury instructions. These jurors were likely biased, perhaps particularly against “deep-pocketed” insurance companies. However, in all fairness, some jurors said that they could not render a verdict in favor of the defense because evidence was somewhat conflicting (testimony of the percipient witnesses) regarding the location of the plaintiff and the dog at the time of the incident. This had no bearing on why the incident happened or the actions of the plaintiff, however. Moreover, it appears that the jury ignored the consistency of testimony by the majority of the witnesses about the most significant facts of the case: The plaintiffs actions towards the dog, the fact that her face must have been within inches of the dog’s face and the nature of this well-tempered Labrador. Given this, I cannot escape the conclusion that the verdict was unjust and based largely on emotion and sympathy for the plaintiff rather than what is dictated by law regarding provocation in dog bite cases.
Richard Polsky, Ph.D. is a California K9 expert witness. Dr. Polsky provides expert witness services to California attorneys in dog bite personal injury lawsuits In which issues of dog bite provocation are raised. He welcomes inquiries from attorneys nationwide.