Dog bite cases – nature or nurture?

medium_11801919454About 4.5 million people are bitten by dogs in the U.S. each year. Some people require further hospitalization or reconstructive surgery and in some cases may suffer from long-term psychological or neurological damage. Fatalities are rare in such cases.

Insurance companies had to pay over $489 million to victims and accounted for more than 1/3 of all insurance claims filed in 2012. The Insurance Information Institute informs us that the average cost of a dog bite claim increased by fifty-five percent between 2003 and 2012.

The most common victims are children, particularly boys. Medical and legal literature on dog bites contains a surplus of information about costs, hospitalizations and fatal dog attacks among other statistics.

Dog behavior

Coming up with arguments from the perspective of animal behavior is beneficial in dog bite lawsuits, especially when liability is contested. Animal behavior is a branch of biology and the studies and findings in this discipline can be used to analyze dog bite cases. Animal behavior analysis is useful to legal experts because fundamentally, it is the behavior of the dog that caused injury to the victim. That’s why a more in-depth analysis is needed to determine liability when it comes to dog bite lawsuits.

If there’s conflicting testimony about how the bite incident happened, animal behavior analysis can ascertain whether the dog was physically capable and emotionally motivated to bite the victim. In other cases, this type of analysis can tell if the plaintiff was bitten or if the incident could have been avoided.

Animal behavior analysis considers the observable behavior of both the dog and the victim considering the circumstances in which the incident took place. Analysis looks at the dog’s behavior as it pertains to a specific breed, the temperament of the individual dog, its experiences, capabilities and the dog’s known reactive behavior to environmental stimuli.

In most dog bite lawsuits that involve home dogs, action is taken against the owner of the dog. Statistically, more than 50% of dog bites occur on or near the dog’s habitable territory (i.e. home turf). The rest of the cases involve third parties such as an animal shelter, a veterinary, a property management company or a company that manufactures pet products. The spectrum of defendants is broad so we will limit our discussion to those cases where the defendant was the owner of the dog or of the property where the dog resided.

Dog bite liabilities

Right now, there are 34 states where the owner of the dog is responsible for damages if the dog bites and injures someone. The nuances of strict liability laws vary between each state however. Some defenses used in countering these strict liabilities are trespassing, assumption of risk and dog provocation. The most commonly used defense is provocation by the plaintiff (teasing or physically injuring the dog prior to the bite).

Liability under common law applies if the dog owner or property owner knew or should have known that the dog kept on his property had exhibited aggressive behavior. This question can best be answered through animal behavior analysis.

Negligence theory comes into play when an omission or unreasonable act was committed that would have endangered the life of another person. For example, if the dog had escaped the property and bit the plaintiff, then this proves negligence against the property owner for failing to properly leash or restrain the dog from harming people.

Animal behavior discovery

A lawyer can gather discovery about an animal’s behavior from those who have seen or interacted with the dog and can say to a certain degree that they know the animal’s temperament. Records can be obtained from animal control, the police, veterinaries, groomers and dog trainers. A private investigator can scour the neighborhood to find witnesses who could testify to the dog’s nature and/or previous incidents.

A behavioral examination of the dog can be done to evaluate the temperament of the animal and to try and simulate the incident as closely as possible to support the plaintiff’s statement.

To counter the defendant’s counter of plaintiff provocation, you will have to establish that the dog had pre-existing aggressive tendencies. The line of reasoning is that the plaintiff could not have provoked the animal if it had previous tendencies to do so or the temperament that would indicate it.

Behavioral history

An inquiry into the dog’s behavioral past will clarify if this argument stands. Records from the aforementioned sources and anyone else that knew the dog will show whether the dog was provoked or if it was acting on pre-existing tendencies. If you can prove that the dog had previously threatened or attacked a person, you will be able to obtain punitive damages.

Data about a dog’s breed can also help in this. Dogs acquired from backyard breeders, especially pit bulls, tend to be more aggressive. Find out if the dog had received training. Male pit bulls, Rottweilers or German Shepherds can be extremely dangerous if not trained in time or socialized from an early age. Inquire about how the dog was kept. Was it chained? Was it left alone for long periods of time? How did the dog behave around strangers? Did he previously escape from the property? Was he underfed, beaten or mistreated in any way? What was a typical day for the dog? How did the owner respond to complaints received about it?

This type of discovery will tell you about whether the dog had violent tendencies or not and how his owner treated him. The jury is more likely to side with the plaintiff if it is revealed that the dog’s owner was negligent and mistreated him.

Conclusion

Dog bite injuries can lead to serious physical harm if untreated and the psychological effects can be long-lasting. By using animal behavior analysis – foreseeability, provocation, temperament, knowledge about the dog’s violent tendencies and negligence can sway the balance in the plaintiff’s favor.

photo credit: nan palmero

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