Dog Bite Defenses
Mar 11 2016

Dog Bite Defenses

Orange County Dog Bite Attorney Discusses the Dog Owner’s Legal Defenses

If a dog bit you, you may assert the claims of negligence or strict liability against the dog owner.  However, dog owners still have defenses to mitigate their liability.  An Orange County dog bite attorney discusses some of these defenses that could challenge your dog bite case.

Lack of Ownership

In most states, such as California, the dog bite statute holding owners strictly liable is limited to the dog owner.  Thus, if the defendant is not the owner but the keeper of the dog, then the keeper must have knowledge of the vicious propensities of the dog prior to your injury.  See Buffington v. Nicholson, 78 Cal.App.2d 37, 42 (1947).  Similarly, former owners cannot be held liable for the dog’s conduct even if you had just purchased the dog and the dog bit you, so long as the sale was complete.  Menches v. Inglewood Humane Society, 51 Cal.App.2d 415, 417-18 (1942).   An Orange County dog bite attorney may argue, if applicable, that the former owner was fraudulent acted in the sale of the dog if he or she knew of the dog’s vicious propensity but did not tell you or lied.

To prove ownership, you may demand documents related to the sale of the dog, the dog’s medical records, animal control records, written authority to euthanize, or circumstantial evidence such as where the dog commonly slept and who took the dog to the veterinarian.  Another indication of ownership is who exercised substantial control over the dog.

Inadequate Identification of the Dog

To succeed on a dog bite claim, it is your burden of proof to show not only ownership but also which dog bit you.  See generally Jordan v. Harvey, 61 Cal.App.2d 134 (1943). This is simple if only one dog is present and that dog bit you.  However, if there are several dogs present, you must identify which dog bit you.  This could be difficult if the dogs are of the same breed and lacks obvious distinguishing marks.

Trespassing

Most states do not permit trespassers to sue for dog bites, although the defense varies from state to state.  Generally, if you were on private property and did not have expressed or implied permission to be on the property, then you may not successfully sue for the dog bite injury. For example, in California, the dog bite statute only protects you if you were in a “public place or lawfully in a private place, including the property of the owner of the dog.”  Fullerton v. Conan, 87 Cal.App.2d 354, 357-558 (1948).  California does not permit trespassers to recover for dog bite injuries, even if you did not have criminal intent, such as robbery or vandalism, when you trespassed.

You are lawfully on the property if you:

  • Had an express or implied invitation or permission, e.g. friend, utility worker
  • Were on the property in furtherance of a duty required by law, e.g. police officer, paramedic, mail carrier

However, even if you were a trespasser, you could also argue liability under the theories of negligence or strict liability for dangerous propensity.  For example, if the owner knew of his dog’s viciousness and he did not take necessary precautions, like posting “Beware of Dog” signs and keeping the dog fenced within his property, he could be held liable for your dog bite injuries.

Provocation, Negligence, and Assumption of the Risk

Although most states impose strict liability for dog bites, many states, such as California, find that the defendants may assert certain defenses if you:

  • Provoked the dog into attacking you
  • Assumed the risk of the dog attack
  • Negligently caused the attack

Burden v. Globerson, 252 Cal.App.2d 468, 470-71 (1967).

Provocation:

In California, some exceptions to the provocation defense include:

  • Child was five years old and younger
  • Child followed parental instructions
  • Your conduct did not justify the dog’s aggressive behavior.  For example, you did not inflict pain.

What constitutes provocation is determined on a case-by-case basis, which may include unintentional acts such as stepping on the dog’s tail.

Assumption of the Risk

To assume the risk of a dog attack, the defense must show that:

  • You knew and appreciated the danger involved with the dog, and
  • You voluntarily accepted the risk.

For example, you assumed the risk of the dog bite if you ignored the “Beware of Dog” signs.

Negligence

It is important to note that in California, if you are five years old and older and found to be comparatively negligent resulting in the dog bite, e.g. you provoked the dog, then your monetary award is reduced by the degree of your negligence.

Seek an Orange County Dog Bite Attorney

If you were bitten by a dog, consult an experienced Orange County dog bite attorney with Russell & Lazarus APC at (949) 851-0222.

 

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