Previous posts discussed the various liability theories under which a dog’s owner/handler can be found responsible for their dog injuring someone. For a list of dog-bite and dog-attack-related blogs, see Dog Bites/Attacks for additional information. Just because someone is bitten or otherwise injured by a dog does not mean the dog’s owner will be liable for the personal injury victim’s injuries. Indeed, there are a number of defenses the owner or handler of a dog can assert in attempting to avoid liability. The big three defenses are provocation, comparative negligence and assumption of the risk. Provocation, as it implies, is an easy concept to understand because it is argued when the victim in some way provoked or caused the dog to attack him/her.
A victim of a dog bite can’t recover for his injuries if the evidence suggests he was violent toward the dog first and the dog, in essence, was defending itself. However, understand that the response by the dog must be justifiable in relation to the action of the victim. The owner of a dog that mauls someone after the victim smacked the dog on the nose will not succeed in his provocation defense. Comparative negligence actually encompasses the provocation defense within it and is often argued as a defense to a dog attack where the victim negligently, in some way, caused the dog to attack. Recall that negligence is, generally speaking, not acting as a reasonable person would in similar circumstances. If the victim is somehow negligent, the value of their case will be reduced by the amount of fault they are deemed to have for the resulting dog bite or dog related injury.
An assumption of the risk defense requires the defendant to show that the dog bite or dog attack victim appreciated the risk that they would be harmed by the injuring dog but proceeded anyway, resulting in injury to them. For example, in Gomes vs. Byrne (1959) the court held that the injured plaintiff assumed the risk of injury because the plaintiff saw the defendant’s dog barking viciously in his yard but still entered the yard where he was bitten. Professional service providers likely assume the risk of being bitten, as was the case of a dog trainer who was bitten by a dog and was found to have assumed the risk of being bitten in Reynolds vs. Lancaster County Prison (1999). This is known as the “Veterinarian’s Rule.” If you or a loved one has been bitten or harmed by a dog, contact our dog bite attorney today for a free consultation.