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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What counts as a dog bite in California?

California dog bite statute
California dog bite statute 3342 does not require that the victim be wounded or the skin broken by the dog’s teeth, according to the appellate decision in the case of Johnson vs, McMahon. The court ruled that as long as the dog’s teeth closes on the victim’s body, proof as shown by the two holes in this victim’s shirt, then a dog bite has occurred according to the California dog bite statute.

Imagine the scenario where German shepherd escapes from the confines of its house in California runs into the yard and seizes the leg of a workman on a ladder. The workmen falls from the ladder and injures himself, but he sustains no breakage of the skin as result of the dog’s mouth clamping his leg with its mouth. Does this count as a dog bite under California’s dog bite statute, Civil Code 3342?  In California, this issue was addressed in  Johnson vs. McMahon (Cal. App. 4th Vol 68 Johnson v. McMahan (1998).

California dog bite statute: Civil Code 3342

California Civil Code 3342 states: “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” [68 Cal. App. 4th 176].

Given the above example involving the German Shepherd, then yes, this counts as a dog bite, according to the California appellate decision rendered in Johnson vs. McMahon. The Appellate Court court ruled that regardless if the victim is injured a person sustains a dog bite as long as: (1) the dog’s mouth closed on the plaintiff’s trousers and (2)  the plaintiff’s leg was between the dog’s jaws.

In rendering the decision the court turned to Webster’s Dictionary for the definition of a bite. The dictionary definition is “to seize with the teeth so that they enter, grip or wound” or “to seize, pinch or severe with the jaws.”  Hence, according to the definition, a wound resulting from the closure of the dog’s teeth on a person’s body part is not needed. A summary of this important appellate decision can be found here.

The California dog bite statute imposes statutory strict liability on the dog owner, similar to the dog bite statutes in Arizona and Michigan. However, the courts in Arizona and Michigan have yet to consider the issue of whether breakage of the skin is necessary component of the law.

Generally, an owner’s best defense to counter  dog bite statutes, regardless of  the state in which the incident happened, is to argue that the victim provoked the dog to bite. Whether the victim provoked the dog in any given instance must be determined on a case-by-case basis.

Last, I note that closure of a dog’s mouth on a person’s body does not always happen as a result of a dog’s aggressive intent. Rather, dogs bite people during play. Playful biting in puppies is common in certain “mouthy” breeds, like Labrador retriever and golden retrievers.  However, these type of incidences rarely result in lawsuits, in part because the victims in these incidents are usually family members.

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Richard Polsky, Ph.D. is President of Animal Behavior Counseling Services, Inc. in Los Angeles. He welcomes inquiries from attorneys seeking a dog bite expert.

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