Dog Bite | Animal Behavior Expert Witness For Attorneys

Richard H. Polsky, Ph.D. CDBC
Los Angeles, California

“Bringing the science of animal behavior to attorneys”

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Standard of care in a dog bite lawsuit

standard of care dog bite
Richard Polsky, Ph.D describes a lawsuit in California in which issues about the defendant’s standard of care of a pit bull were raised.

The standard of care afforded  a dog is an issue that  occasionally arises in dog bite lawsuits. Basically this issue concerns itself with the care and management a person gives to a dog, or lack thereof,  in order to control the dog’s behavior. Hence, this an issue about negligence.  Inadequate standard of care given to the dog by the dog’s owner or keeper may make them liable, as defendants, for damages inflicted to the plaintiff because of the negligent fashion in which they handled or maintained the dog.

As a expert witness with training in the science of animal behavior, I been retained by both defendants and plaintiffs attorneys to opine about standard of care with respect to the keeper of a dog.  For example, a dog’s  “keeper” may include a dog sitting company, animal rescue organizations or an animal shelter. [1]California law which distinguishes dog keepers vs dog owners is not straightforward.  The interested reader should explore further to understand the differences between the two categories. Although the standards differ according to the industry, all cases have one issue in common. Namely, from an animal behavior perspective, were the actions of the defendant reckless and did the defendant’s recklessness contribute to the incident in question?

Below, I describe a dog attack lawsuit in California where expert opinion was needed regarding the standard of care afforded by the keeper of a dog. In this matter, the defendants were a married couple who allowed their tenant to keep his pit bull on their property. This couple owned a house with three bedrooms and they rented one of the bedrooms to this tenant, a man in his 20s.  Shortly after the tenant moved in, he acquired ownership of a one-year-old male pit bull named Munch.  The owners of the property allowed the tenant to keep Munch on their property and they modified their rental agreement to reflect such.

Munch lived on the defendant’s property for about two years before the occurrence of the incident in question. During this time Munch had displayed no signs or indication of aggressive propensities or that he presented a potential danger to people. For the most part, Munch spent most of his time in the tenant’s bedroom but he was also allowed in the backyard. [2]The defense argued that the property owners were the co-owners of Munch, but allegation this was not supported by the evidence. The tenant, the legal owner of Munch, was judgment proof and … Continue reading

Brief overview of the incident

The plaintiff, a nine-year-old girl, visited the defendant’s property with her family over Memorial Day weekend in 2017. On the day the incident, Munch was in the backyard. The plaintiff walked into the backyard to say hello to Munch, after receiving permission to do so from the property owner. She was viciously attacked by Munch shortly after entering the backyard. Munch first latched onto her face and then knocked her to the ground. He then dragged her a short distance. Munch was forcefully pulled away from the plaintiff by several adults who fortunately were nearby. Munch was shortly thereafter euthanized [3]Note that there were significant discrepancies between the testimony of the defendants and plaintiff in terms of how the incident unfolded and other facts were disputed in this case.

Plaintiff arguments

The plaintiff argued the defendants were negligent because they (a) allowed a relatively non-familiar a nine-year-old girl into the backyard with a potentially dangerous pit bull and (b) the defendants were reckless in their decision to allow Munch to live on their premises.

Support for these arguments were as follows:

  • Adult male pit bulls are potentially dangerous;
  • The owners allow their tenant to bring Munch into their home with little knowledge of his background;
  • The defendant acted recklessly when she allowed the plaintiff, a person who had not interacted with Munch in six months, to enter the backyard with a potentially dangerous adult male pit bull.
  • Munch viciously attacked the plaintiff. This vicious attack indicated that Munch possessed dangerous propensities before the incident and the defendants no about these dangerous propensities.

Defense arguments

The defense argued that the standard of care of the defendants exhibited was satisfactory and not negligent when (a) they allowed the tenant to bring Munch to live on the property and when (b) the defendant allowed the plaintiff to enter the backyard knowing that Munch was in the backyard.

Support for these arguments were as follows:

  • Munch was not an inherently dangerous pit bull.  Many pit bulls make good household pets
  • Munch had a stellar behavioral history and had never displayed any signs of aggression during the two years he was living in the home of the defendants;
  • No complaints were ever received by the defendants or by animal control, regarding the behavior of Munch;
  • The plaintiff had numerous favorable interactions with Munch and  Munch had a good social memory of the plaintiff even though she may not have visited and interacted with Munch for about six months;
  • Munch received positive results from his temperament testing and he was neutered and trained shortly after he began living on the property of the defendants.

Animal behavior expert opinion on dog bite standard of care

The totality of the evidence showed that (a) Munch had never acted aggressively towards any human or dog before the incident including the plaintiff and (b) Munch had resided in the defendants household for about two years. This evidence was sufficient to prove that Munch had established himself as a dog who was well-tempered and a dog who could be trusted with visitors, including the nine-year-old plaintiff.

The plaintiff’s expert, a dog trainer masquerading as a qualified animal behaviorist, testified that Munch attacked the plaintiff because of the dog’s predatory propensities. This was nonsense. I believe this testimony was created to mitigate the argument that the plaintiff provoked this dog attack. [4]As it turns out, because the logistics in which the case was handled by the defense, provocation as an argument to mitigate liability was not allowed by the court. Hence, the court did not allow … Continue reading

Munch viciously attacked the plaintiff.  She was bitten on her neck, and the bites came dangerously close to her carotid artery. Nonetheless, the foreseeability of this vicious attack was not consistent with any prior aggressive episodes towards people by this dog. Hence the lack of previous aggression episodes, further buttresses animal behavior opinion that the plaintiff likely provoked the attack in some fashion. [5]For example, according to testimony  of property owner, after the plaintiff entered the backyard she started jumping. These actions may have provoked Munch. This evidence was disputed by others, … Continue reading

Conclusions: Based on the totality on the evidence regarding decidedly non-aggressive nature of Munch before the incident, there was insufficient evidence to suggest the defendants had knowledge of Munch’s aggressive propensities before the incident.

Outcome

The case proceeded to trial in Sacramento, California in January 2022. The jury rendered a verdict of negligence on the behalf of the property owner.  Hence, the jury concluded that the standard of care afforded munch by the property owners was inadequate. The court, based on the special instructions given to the jury, awarded the plaintiff a total of $297K, inclusive of damages.  The jury did not address the issue of strict liability (i.e. prior knowledge) by the property owners. [6]The verdict indicates that property owners may be liable for of negligence even in absence of prior knowledge of a dog’s dangerous propensities. These are separate issues.  Moreover, it … Continue reading

Further reading on standard of care in civil matters

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Richard Polsky, Ph.D. serves as an animal behavior expert witness in dog bite cases in California and throughout the United States.

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Footnotes

Footnotes
1California law which distinguishes dog keepers vs dog owners is not straightforward.  The interested reader should explore further to understand the differences between the two categories.
2The defense argued that the property owners were the co-owners of Munch, but allegation this was not supported by the evidence. The tenant, the legal owner of Munch, was judgment proof and disappeared after the lawsuit was filed. Hence, the plaintiff’s efforts for recovery for damages were directed to the owners of the property. Given dog bite law in California, the burden therefore was on the plaintiff to prove that the defendants had knowledge about the dangerous propensities in Munch and that they knew about the foreseeable danger Munch presented to people visiting their property.
3Note that there were significant discrepancies between the testimony of the defendants and plaintiff in terms of how the incident unfolded and other facts were disputed in this case.
4As it turns out, because the logistics in which the case was handled by the defense, provocation as an argument to mitigate liability was not allowed by the court. Hence, the court did not allow animal behavior expert opinion on the issue of provocation. This ruling was unfortunate for the defense because it is very likely the plaintiff provoked Munch to attack given his behavioral history and the totality of the circumstances present at the time of the attack.
5For example, according to testimony  of property owner, after the plaintiff entered the backyard she started jumping. These actions may have provoked Munch. This evidence was disputed by others, however.
6 The verdict indicates that property owners may be liable for of negligence even in absence of prior knowledge of a dog’s dangerous propensities. These are separate issues.  Moreover, it appears that the jury believed that pit bull type dogs need to be handled and managed differently than more docile breeds, such as Golden retrievers, even if the pit bull had never displayed prior signs of dangerous propensities.