A behavioral perspective on punitive damages in dog bite cases
Proving punitive damages in a dog bite case requires that the dog owner acted despicably, or maliciously, in terms of how the dog was managed or handled. Supplementing this legal standard with a behavioral perspective often helps in dog bite civil lawsuits alleging punitive damages. For example, establishing that (a) the dog was dangerous by nature, and (b) the owner was flagrantly recklessly in curtailing the danger the dog presented to people, usually can be extremely beneficial
Appellate law on punitive damages in dog bite cases is sparse, and in California there are no published decisions which discuss punitive damages in dog bite cases. In the absence of specific legal guidelines, deciding on punitive damages becomes an issue for the judge and jury, and support for a punitive damages claim may bolstered with convincing behavioral evidence.
Was the dog's behavioral history sufficient to make the owner aware of the dog's dangerous propensities? Based on the circumstances of the attack, was the attack on the plaintiff foreseeable? These questions are similar to those asked in ordinary dog bite negligence cases, but when a punitive damage claim is made the extent of danger the dog presented, and the degree of negligence, become relatively more important.
Discovery should be collected regarding the owner's knowledge about breed propensities, the owner's knowledge about the dog's previous attacks on people, assuming previous attacks have been documented. Obtaining this information helps to support an argument that the owner acted recklessly, particularly if the incident in question arose because the dog was allowed to escape from the owner's property. If previous escapes can be documented, then the behavioral question becomes the kind of containment system that should have been in place to prevent the escape of a known dangerous dog.
From the plaintiff's perspective it would be helpful to show that prior to the incident in question, the dog attacked another person in a context similar to the incident in question, and for similar reasons. For example, an attack by a dog on a human during a veterinary examination is dissimilar to an attack for territorial reasons. Generally, from a behavioral perspective, the motivational aspects behind all attacks should be similar. The target of the attack and contextual features in which the attack happened should also be similar. For example, did the dog have a history of being problematic with children, or did the dog have a problem with people who approached, or people who entered its territory? Note that if the dog had previous propensities to attack other dogs or animals, case law in most states is clear in him and that this does not necessarily indicate that the dog will be necessarily aggressive towards humans. From a behavioral perspective, this is a valid conclusion.
An owner's knowledge that certain breeds may be more inherently dangerous and aggressive than other breeds is certainly useful information to have, (e.g. pit bull type dogs, German shepherds, Rottweilers), but breed characteristics by themselves usually cannot be used to support the belief that an individual dog is necessarily dangerous or vicious by nature. Other behavioral evidence must be used collectively with breed characteristics to justify punitive damages.
As in many dog bite cases, it is difficult to get quality discovery that has bearing on the above issues: witnesses cannot be located, and one cannot rely on animal control reports because they rarely provide adequate detail for the animal behaviorist about how an incident unfolded, or the motivation underlying the dog's attack. Moreover, recent findings in the animal behavior literature indicates that direct behavioral inspection of a dog yields questionable results with regard to predicting future behavior. Animal control reports do not provide information about the dog's temperament or a dog's motivation for attack. Animal control and police reports are useful, however, in that they document a previous attack happened, which adds weight to the belief that the owner probably knew about the dog possessing the potential for aggressive responding. Another source of information would be findings from dangerous dog hearings, which may be available if the dog was previously cited by animal control.
If it can be established that the dog in question was dangerous by nature prior to the incident in question, then it can be reasonably argued that a greater standard of care was required for the particular dog in question. An animal behaviorist can clarify the standard of care that should have been undertaken given the dog in question, and its past behavioral history. How should have the dog being kept, or what reasonable steps would have been taken by a responsible dog owner to lessen the danger the dog presented? The trier of fact decides upon the extent to which the owner deviated from reasonable measures of standard of care for the dog in question, an expert opinion should help in this regard.
Finally, from a behavioral perspective, there are a number of steps an owner can take to reduce a dog's aggressive potential. None are foolproof, however. If the owner cannot control the dog, then the dog should be removed from the property, or euthanized. Various types of relatively escape-proof containment systems are available. In this regard, chaining is inadvisable for most aggressive dogs because it could actually engender further aggressive tendencies. The owner should get the dog evaluated by a competent animal behaviorist, have dog examined by a veterinarian, have the dog properly trained, neutered, subjected to drug therapy, muzzled, canine tooth reduction, etc., If the owner disregards these steps, a jury may not be that sympathetic, and if the extent of the dog bite injury is severe (serious facial wound to a child or psychological damage in the form of posttraumatic stress), then the claim for punitive damages may be justified.
Contact Info:
Animal Behavior Counseling Services, Inc.
2288 Manning Ave.
Los Angeles, California 90064
Telephone: (310) 474-3776
Nationwide: (800) 605-2227
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