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 California 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 given to a dog is an issue that  occasionally arises in dog bite lawsuits.

Basically, this is an issue about the care and management an owner or keeper of a dog affords the dog, or lack thereof. It is an issue about how well the dog was controlled. From a legal perspective, this raises  arguments about negligence by the keeper or owner of the dog.

Inadequate standard of care given to the dog  can potentially make the owner or keeper liable for the damages inflicted to the plaintiff. In fact, in the vast majority of dog bite lawsuits that I have been involved in as an expert witness, action is taken against the owner or keeper because of their supposed negligence. The burden is on the plaintiff to prove that negligence was the proximate cause of the plaintiff’s injury, however. Below, I describe a case in California where negligence was main issue raised in a case that proceeded to trial in Sacramento, California in January 2022. [1]A dog’s “keeper” may include a dog sitting company, animal rescue organizations or an animal shelter. California law which distinguishes dog keepers vs dog owners is not … Continue reading

Overview of the incident

The defendants, a married couple, 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 even 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

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 purposely and thoughtfully created to mitigate the argument that the plaintiff provoked the dog to 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

There was no question that Munch viciously attacked the plaintiff. She was bitten on her neck, and the bites came dangerously close to her carotid artery.  Hence, she could have been killed due to the rapid loss of blood. Despite the severity of the injury, the foreseeability of this vicious attack was not consistent with any prior aggressive episodes towards people by Munch. 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

Outcome

The jury decided that the property owners were negligent in the way they handled the dog at the time of the incident.  Their conclusion was that the standard of care afforded Munch by the property owners was inadequate. Specifically, they concluded that the defendants were negligent in allowing the plaintiff in the backyard in the presence of Munch.

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, however. This 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, at least according to California dog bite law.  Moreover, apparently the jury believed that pit bulls 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.

Further reading on standard of care in civil matters

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Richard Polsky, Ph.D. has served as an animal behavior expert witness for attorneys on many occasions. He resides in Los Angeles, California with his human family and two trusted and well-behaved terriers.

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Footnotes

Footnotes
1A dog’s “keeper” may include a dog sitting company, animal rescue organizations or an animal shelter. 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?
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.