Animal Behavior Analysis of Liability in Dog Bite Cases Posted on July 28, 2014 by Larry Bodine By Richard H Polsky, PhD, Animal Behavior Counseling Services, Inc., Los Angeles, CA. Currently, 34 states make the owner strictly liable for damages if their dog bites and injures a person Estimates show that about 4.5 million people are bitten by annually in this country. Some victims require hospitalization, reconstructive surgery or suffer long-term psychological and neurological damage. People are killed on rare occasions. Payments to victims by insurance companies in the United States totaled more than $489 million and accounted for more than one third of all claims filed by homeowners in 2012. The average cost of a dog bite claim increased 55% between 2003-2012. according to the Insurance Information Institute. Children, particularly boys, are usually the victims. The literature on dog bites contains a surfeit of information about costs, fatal dog attacks, hospitalizations and other demographic and epidemiological statistics (J. Gilchrist, et. al. Dog bites: still a problem? Injury Prevention, 2008; 14; 296-301). The behavior of the dog Developing arguments from an animal behavior perspective is beneficial in many dog bite lawsuits. This is particularly true for those cases in which liability is contested. Animal behavior is an established biological discipline, and the principles and findings from this discipline can be applied in significant ways to the analysis of dog bite cases. Animal behavior analysis is useful because fundamentally it is the behavior of the dog that caused injury to the plaintiff. Hence, analysis is needed which addresses the interplay between dog behavior and liability in dog bite lawsuits. Animal behavior analysis can determine if the dog was physically or motivationally capable of biting the plaintiff if conflicting testimony exists about how the incident happened. In other cases, animal behavior analysis can conclusively show the plaintiff was bitten or that the incident was foreseeable. Animal behavior analysis considers the observable actions of both the dog and victim relative to the circumstances in which an incident happened. Analysis is made about behavioral tendencies of the individual or breed, the dog’s experiences, the behavioral capabilities of the dog, and the dog’s behavioral reactivity to environmental and contextual variables. In most dog bite lawsuits involving companion dogs, action is usually taken against the owner of the dog or owner of the property where the dog lived. Ordinarily, more than 50% of all dog bites occur on or near the “home turf” of the dog. Less often, other cases may involve a third party such as a veterinarian, animal shelter, a property management company, municipality or a company which manufactures pet products. The spectrum of potential defendants is broad. In this article, I will limit the discussion to instances where the defendant was either the owner of the dog or property owner. Liability approaches Currently, 34 states make the owner strictly liable for damages if their dog bites and injures a person. The nuances of strict liability laws vary from state to state, however. Although strict liability laws make recovery for the victim easier, there are nevertheless effective defenses to counter strict liability. These include trespassing, assumption of risk, and provocation. Provocation by the plaintiff, such as a teasing or causing physical injury to the dog, is the most frequently used defense. Common law strict liability (also know as “scienter” or the “one bite rule”) and negligence is the bases for most lawsuits against the property owner. The case Matthews v. Amberwood Associates Limited Partnership Inc. (351 Md. 544, 1998) provides a comprehensive review of landlord dog bite liability from state to state. Generally, liability under common law applies if the property owner knew or should have known that the dog kept by the tenant on his property had vicious or mischievous propensities. This is a question best answered through animal behavior analysis. Negligence theory states that the dog owner or property owner committed an unreasonable act or omission regarding the harm a dog might cause a person. An example would be instances in which the dog bit the plaintiff after escaping from the property where it lived. In these instances, violation of local leash laws makes the dog owner, but not property owner, negligent per se. Showing that the property owner failed to take the necessary steps to prevent the dog’s escape from the property (i.e. a fence/gate in need of repair) establishes negligence against the property owner, however. Animal behavior analysis determines what the property owner should have done to prevent the dog’s escape. Animal behavior discovery The success of the liability portion of your case depends in large part on collecting important animal behavior discovery to prove that the defendant was negligent in their handling of the dog or that the incident was foreseeable and that the defendant knew that the dog was dangerous by nature. Your success also depends on countering arguments of provocation by the plaintiff. Gather discovery from those who might have observed the dog’s behavior or from those who had knowledge about the dog’s temperament. Collect records from the police, animal control, veterinary hospital, groomers, and boarding facilities. It may be beneficial to hire a private investigator to scour the neighborhood for witnesses who would testify about the dog’s dangerous nature. Finally, a behavioral examination of the dog may be beneficial to evaluate the dog’s temperament or to recreate the incident as closely as possible to support the plaintiff’s version of the incident. Videotape recording should be considered, but if the dog’s behavior is not consistent with the plaintiff’s testimony then the video could be used against you. The defense may argue that the plaintiff provoked the dog. The recovery your client receives will be reduced if this is established. The decision in Brans v. Extrom (701 N.W. 2d 163 MI 2005) reflects the law on provocation in many states. To counter the provocation defense, you need to establish that the dog had pre-existing tendencies to bite a person in circumstances similar to those in which the incident happened. The rationale here is that the plaintiff could not have provoked the dog to bite if the dog had already possessed the tendency to bite or the temperament to do so. Behavioral history and temperamental features Inquire about the dog’s past behavioral history and temperamental features to support this argument. Collect discovery from relevant sources such as veterinary charts, emergency room records, animal and police control reports or from anyone who had knowledge about the dog’s behavior. Moreover, establishing that the dog had repeatedly attacked or threatened people, could provide the basis for punitive damages. Collect information about where and when the dog was obtained. Dogs obtained from backyard breeders, particularly pit bull type dogs, may be genetically aberrant, and therefore dangerous by nature. Next, determine if the dog had received training and the nature of the training. Reproductively intact male pit bulls, Rottweilers or German Shepherds from questionable breeding stock that are not properly trained or socialized can be extremely dangerous. Inquire about how the dog was maintained and what the dog did daily. Was the dog chained, muzzled or left alone in the backyard for long durations? Was the dog taken for walks? How did the dog greet strangers? Did the dog previously escaped from the property? Was the dog in good health or taking medications? Ask about a typical day in the life of the dog. How did the owner deal with complaints that were received about the dog? Gathering this kind of discovery may help establish that the dog was dangerous by nature and that the owner showed indifference about the danger. A jury is likely to dislike an owner who was indifferent about the danger the dog presented. Common defenses of a property owner (or the management company or agent) are the absence of negligence or lack of actual knowledge about the dog’s dangerous propensities. In short, the incident was not foreseeable. To counter this, determine what the property owner knew to show an awareness that the dog created a dangerous condition on the property. Did neighbors or delivery people complain about the dog? Did the property owner know about escapes by the dog from the property or previous instances in which the dog threatened or inflicted injury to a person? Did the dog bark or growl when visitors came to the property? Was the dog chained? Did the tenant confine the dog when people visited the property? Was the fence surrounding the property in good repair? What knowledge did the landlord or management have about certain breeds like mastiffs, pit bulls, Rottweilers or German shepherds? Did the property owner or management company allow a blacklisted breed to remain on the property? Circumstantial evidence gleaned from these lines of inquiry can prove that the landlord had actual knowledge about the dangerous nature of the dog or that insufficient measures were taken to abate the danger. Dog bite injury often causes often serious physical and psychological harm to the victim. The chances of maximizing recovery for your client increase by using an animal behavior perspective to analyze common legal issues you are likely to encounter in these kind of cases — foreseeability, provocation, knowledge about the dog’s dangerous propensities, and negligence.