Defenses in Dog Bite Cases
A dog owner may seek to avoid liability in a dog bite case by raising one or more defenses. In such circumstances, representation by a skilled dog bite lawyer able to identify a defendant’s potential defenses and to plan accordingly is essential
Defenses that may be available to a dog owner include:
Trespassing: In order to recover damages under the Dog Bite Statute, the dog bite victim must have been in a public place or legally in a private place at the time of the dog bite attack. Since most dog bite attacks occur on the dog owner’s property, a dog owner will often claim that the victim was trespassing onto his property at the time of the attack.
To be legally on someone’s private property, one must either have an express or implied invitation of the owner or one’s presence must be permitted by law, such as a mail carrier or police officer on official duty. People generally have an implied invitation to approach someone’s front door to ask for directions, take a survey or sell a product. But a person who ignores a posted warning or crosses over a fence will likely be considered a trespasser.
While an effective trespass defense will allow a dog owner to avoid liability under the Dog Bite Statute, the dog owner may still be liable to a trespassing victim under common law theory.
Because children are deemed not have the judgment to avoid dangerous situations, a landowner has a duty to protect children from dangerous conditions on their land. A dog owner may, nonetheless, be able to establish a trespass defense against a child in limited circumstances. In one California case, a five year old guest on the property was bitten after opening a gate and entering the backyard despite clear instructions to stay out. The court found the child had trespassed into the backyard and that the defendant was therefore not liable.
Provocation: The dog owner may claim the dog bite victim provoked the dog into attacking him. While kicking and teasing are clear examples of provocation, provocation may also be more innocent in nature. There may be provocation if the dog bite victim playfully hugged an unfamiliar dog or accidentally stepped on his tail.
If the dog bite victim is under the age of five, the defendant cannot raise a provocation defense. In California, such young children are deemed incapable of negligent acts, such as provoking a dog, as they are not considered capable of acting with reasonable care.
Assumption of Risk: If the dog owner can prove the dog bite victim assumed the risk of being attacked, the dog owner will not be liable. To do so, he must show the dog bite victim recognized the danger that the dog would bite him. In one case, the victim entered a fenced yard despite seeing a dog barking forbiddingly. By entering the yard, the victim was deemed to have assumed the risk of being bitten.
Assumption of risk, however, would not necessarily prevent a negligence action by a victim who was bitten while trying to protect another person from being injured by the dog. This exception is called the “Rescue Doctrine” and is based on the theory that “danger invites rescue”. If the dog owner negligently created the situation that put the first person at imminent risk, the owner is not permitted to avoid liability for the injuries to a person who might try to come to the first person’s aid.
Veterinarian’s Rule: People who make a living handling dogs are considered to have assumed the risk of being bitten while the dog is in their custody or under their control. This rule applies to veterinarians, dog groomers, and dog trainers, dog transport handlers, dog walking services, pet shop employees and paid house sitters.
While the rule completely bars actions under the Dog Bite Statute, a canine worker might still have a common law or negligence-based claim for his injuries under limited circumstances. This would be the case, if, for example, a dog worker was bitten after being mislead about a dog’s viciousness by the dog’s owner, or if the owner knew his dog was vicious and concealed this fact from the dog worker.
Statute of Limitations: Another bar to recovery by the dog bite victim, if raised by the defendant, is that the statute of limitations has expired. Dog bite victims are generally required to file a dog bite liability lawsuit within two years from the date of the injury. This period is extended for minors, who have until two years after the date of their 18th birthday to file a claim. More importantly for the victim, if the defendant is a government agency, special rules apply, and the victim may only have 60 days to make a claim. Your dog bite lawyer will be able to determine how these rules apply to your case.
Depending on the specifics of your case and the legal basis of your claim, additional defenses may be available to the dog owner or to the other defendants in your case. After reviewing the facts of your case, your dog bite lawyer will be able to assess the merits of your case and determine the best strategy for recovering all of the damages to which you are entitled.