Is the Owner Liable for a Dog Bite When the Victim Provoked the Dog?
Although millions of dog bites occur in the United States each year, relatively few victims file lawsuits or seek settlements. When they do, however, the provocation defense is one of the most common tools that a defendant can use to avoid liability. The nuts and bolts of a provocation defense depends on the details of state and local laws that govern dog bite claims.
“Dog Bite” Statutes
Many jurisdictions (states, cities and counties) have enacted specific “dog bite” statutes and ordinances that may impact the effectiveness of dog bite claims. Many of these jurisdictions apply strict liability to dog bite claims, meaning that the dog’s owner is liable for the damages suffered by a dog bite victim no matter how careful he was to ensure that the dog would not bite anyone. In other jurisdictions, the dog bite victim must show that the owner was negligent in some way (by failing to chain up a dog that had bitten people before, for example).
The Provocation Defense
The provocation defense allows the owner to avoid liability if the dog bite occurred because the victim provoked the dog. In most jurisdictions the defendant does not have to show that the dog was provoked — instead, it is the victim who must prove that he did not provoke the dog. Even in strict liability jurisdictions, a defendant who is found liable for a dog bite might still be able to reduce the amount of his liability by showing that the dog was provoked by the victim
In most jurisdictions, the provocation does not have to be the victim’s fault to succeed as a defense – the dog might have been provoked when the victim stepped on the tail of a dog in a dark room, for example.
Loopholes in the Provocation Defense
- Overreaction: An overly aggressive, out-of-character response by a dog to a minor provocation can justify an exception to the provocation defense, since the victim could not have reasonably foreseen that the dog would react aggressively to the “provocation”.
- Aggressive character: Some dogs have naturally aggressive characters. If the dog owner knew or had reason to know that the dog was aggressive, a provocation defense could fail if the owner failed to take sufficient steps to ensure the safety of others (by muzzling the dog, for example). Nevertheless, if the dog’s breed is known to be aggressive (Rottweilers, for example), a court might rule that the victim should have foreseen an aggressive response to even a minor provocation.
- Comparative fault: In some jurisdictions, a provocation defense will not completely exonerate the owner even if it is successful. Instead, the court will determine the relative fault of the victim due to the provocation, and reduce the amount of damages by the victim’s degree of fault (25 percent, for example). The provocation defense might still succeed in these jurisdictions if the victim’s degree of fault was 50 percent or greater.
- Local exceptions: Many jurisdictions have passed quirky dog bite laws that can defeat a provocation defense under certain circumstances – for example, in Florida the defendant must show that the victim acted carelessly in order for the provocation defense to apply – an innocent provocation will not exonerate the dog owner.
The success of a provocation defense to a dog bite claim might depend on the nuances of local dog bite law, and is likely to require the assistance of an experienced local dog bite lawyer.