Dog Bites And Other Injuries: Legal Defenses Of A Dog Owner
Provoked The Dog
infringed or broke the law at the time of the injury
intentionally risked being injured by the dog, or
contributed to the injury by being unreasonably carefree.
Owners cannot use all of these arguments in all cases. For example, the laws of some states do not allow certain defenses. In addition, the means of defense available may depend on the nature of the prosecution. To understand how it works, it helps to know that an injured person can usually sue the dog owner based on one (or more) of the basic rules for dog bite injuries:
a legal principle is known as the "one bite rule" which makes owners responsible if they knew their dogs posed a danger
"Strict Liability" dog bite laws in most states that make owners responsible even if they did not know the dog could be dangerous, and laws or court decisions that make careless dog owners responsible if they are unreasonably careless in controlling their animals.
Dog bite laws in many states do not apply in certain circumstances, most often when the injured person provoked the dog or trespassed. Some of these statutes make the victims (rather than the owners) prove that they were not at fault. And some defenses may be available if the owner's liability is based on the rule of a bite or neglect, but not under a dog bite law.
Was The Dog Provoked?
Dog owners will almost certainly be off the hook if the injured person provoked the animal, for example by hitting or teasing it. But what about other actions that are not so provocative? Depending on the circumstances, the courts can release the owners from any responsibility when the victims involuntarily provoke dogs by:
accidentally stepping on the tail (see Brans v. Extrom, 701 N.W. 2d 163 (Mich. Ct. App. 2005))
pet strange animals when they eat or chained
intervene in a dog fight, or
spray a repellent on a dog in self-defense (see Steichman v. Hurst, 275 N.E.2d. 679 (Ill. App. 2d 1971)).
Toddlers tend to hug strange dogs, pat them hard, or playfully pull their tails. If the dog responds by biting the child, can the owner of the animal use the defense of provocation? The answer depends in part on the wording of the relevant state law and how the courts interpret it. For example, in Massachusetts and Connecticut, dog bite laws assume that an injured child under the age of seven did not provoke the dog, which means that the owner should prove that there has been provocation (Mass. Gen. Laws, ch. 140, § 155; Conn. Gen. Stat. § 22-357). Courts in some states have held that the provocation exception in a dog bite law applies even when the victim was very young (see, for example, Reed v. Bowen, 503 So.2d 1265 (Fla. App. 1986) and Toney v Bouthillier, 631 P.2d 557 (Ariz. App. 1981)). Other courts have concluded that this defense does not apply to three-year-old children because they are not responsible for their actions or are unable to provoke a dog (see Ramsey v. King, 470 NE2d 241 ( Ohio Ct. App. 1984)) and Smith v. Sapienza, 115 AD2d 723 (NY App. Div. 1985)).
The rules about what is and is not an intrusion can also be complicated. An intruder is someone who has not been invited to the property or who has no good reason to be there. This could include running a hand through a fence to pet a dog (see Kenney v. Barna, 341 N.W. 2d 901 (Neb. 1983)). But the courts have generally found that you have given an "implicit invitation" to members of the public to come to your door for routine purchases (such as asking for instructions or taking inquiries) unless you have notified them with signs. or locked doors. In addition, letter carriers and police officers carrying out their official duties have a legal reason to be on private property.
Another general rule is that when it is reasonable to expect people to come to your house, even if you have not explicitly invited them, you will probably be responsible if your dog harms them when they are. This principle is particularly important for children, who are likely to walk around the neighbors' yards to play with dogs. Owners have the legal responsibility to prevent children from coming onto their property or to prevent their dog from injuring children.
Was The Injured Person Breaking The Law?
In some states (such as Iowa and Maryland), dog bite laws do not apply if the victims have committed a crime. But in Ohio, this crime must be more than a "minor crime".
Was The Injured Person Careless?
States have different ways of dealing with the issue of liability when the neglect of dog bite victims has contributed to their injuries. In the majority of states that use some form of “comparative negligence” rule, victims will receive less compensation in proportion to their share of responsibility. But most of these states have suspended compensation when the share of the injured reaches 50 or 51%. And some states even refuse compensation to victims who contributed to their injuries, even the slightest. Depending on the state and how its courts interpret the law, comparative negligence may not apply when an injured party sues under a dog bite law rather than because of the owner's negligence. (For more details, see our article on cases where the victims of dog bites are partly at fault.)Talking With A Lawyer
The rules relating to legal defenses against dog bites are complex and can vary considerably from state to state, as well as from one set of circumstances to another. If you are facing a trial for an alleged injury caused by your dog, you should seriously consider talking to an injury lawyer. A lawyer experienced in this area can explain in detail the defenses available in your situation and state and can help you protect your rights. And if you've been injured by someone else's dog and plan to sue the owner, a lawyer can help you prepare to counter any argument that you were at least partly responsible.