Dog bite provocation is one of the most common animal behavior issues in dog bite litigation.

In civil cases, the defense may question whether provocation was a factor causing the dog to attack and bite the plaintiff.  Willfully invited injury – or comparative fault by the plaintiff – as a result of provocation is often the best defense to counter liability, particularly in those states with strict liability for dog bites, such as California’s and Arizona.   Generally, if provocation can be proved, a plaintiff’s recovery may be reduced in proportion to the plaintiff’s contributory fault.

I have had the opportunity to opine about whether provocation occurred in many dog bite cses. And I have learned  that the answer is not straightforward.  Fact patterns and the totality of the evidence differ from case to case thereby  necessitating  opinions the made on a case-by-case basis using an animal behavior perspective.

Why use in animal behavior perspective?  Basically, provocation is about behavior, both of the dog and victim.   Whether provocation happens can best be understood only in terms of the actions of a dog or victim. A broad definition includes “inaction which incites a reaction.” Hence, both the behavior of victim and the dog need to be scrutinized.

Dog bite provocation – Appellate rulings

I am not aware of any appellate decision that has defined the term provocation or have considered its occurrence from an animal behavior perspective.  Hence, if provocation cannot be objectively defined then how can a court determine if provocation occurred in any given instance.  Nevertheless, in the absence of any understanding of animal behavior, appellate courts have taken upon themselves to render rulings about this issue.   For example, there are California cases which do not support a defense of provocation.

For example, in (Smythe v Schacht (1949) 93 CA2d 315) the court ruled that crouching over a dog to pet it was not provocative. Likewise reaching down to pet a dog (Ellsworth v Elite Dry Cleaners (1954) 127 CA2d 479), or giving a dog food (Burden v Globerson (1967) 252 CA2d 468) were deemed non-provocative acts by the plaintiff. These decisions are capricious since no comprehensive analysis was made of the behavior of the dog, it’s temperament or of the behavior of the victim. ^[1]Animal behavior analysis is irrelevant  in some instances.  For example, in California, the age of the plaintiff may be a consideration in determining whether the victim provoked the dog. See … Continue reading

In contrast, appellate rulings in states other than California have ruled that the plaintiff’s actions were provocative in nature. For example, an Illinois court ruled that a two-year-old child stepping on the tail of a normally non-aggressive Dalmatian was provocative (Nelson v Lewis (Ill App 1976) 344 NE2d 268). And in Arizona, provocation happens regardless of the intentions of the plaintiff since provocation depends on whether the action caused the animal to react rather than on the intent of the victim.  (Toney v Bouthillier (Ariz App 1981) 631 P2d 557.)

 Animal behavior perspective on dog bite provocation

Whether provocation happened best be determined by the totality of the circumstances present at the time of the incident. This includes the actions the victim may have directed at the dog and the dog’s reaction.  Similar actions affect dogs differently  given that each dog has its own unique temperament. Any given action by the victim’s directed to the dog will not necessarily provoke an attack by a dog. Nonetheless, appellate courts have made rulings on provocation, rarely considering animal behavior criteria.

Ultimately whether provocation occurred is a question about animal behavior because of how a dog reacts to the behavior of the victim or animal behavior issues.  This is the substance of the matter. Animal behavior analysis must look at the totality of the evidence, which includes the temperament of the dog, it’s behavioral history in similar circumstances, and the  immediate circumstances in which the incident happened. 

Questions about dog bite provocation

Animal behavior questions that need answering are as follows:

What did the plaintiff do to the dog?

What were the exact actions of the plaintiff toward the dog the moment the incident occurred? The behavior of the plaintiff hours or minutes prior to the incident also needs to be assessed. Was the dog’s reaction something one would have expected given its temperament, breed characteristics, or past experience? Did the dog overreact in response to the plaintiff’s actions? Often the motivational basis of a dog’s aggression is one of dominance, fear, predation, or protection. In other cases, pain may be involved. Animal behaviorists know that pain can immediately trigger be conditioned to previously neutral features in the dog’s environment, such as a person, thereby causing the dog to respond with aggression for no apparent reason.

Other common gestures or acts that could easily elicit an aggressive reaction from a dog include quickly invading the dog’s personal space, kicking or bumping into the dog, intentionally thwarting an ongoing activity in which the dog is engaged, and even an apparently innocuous act like petting or kissing a dog. Not all dogs react in a similar fashion. Therefore, the merits of arguing provocation will vary from case to case.  In general, however, the plaintiff’s actions have to be of the kind that would cause a dog to experience pain, become threatened, frustrated, irritated, or frightened.

What was the dog’s temperament and behavioral history?

One needs to assess the temperament of the dog. Tremendous differences exist between dogs in terms of the likelihood of reacting with aggression as a result of a supposedly provocative act. Some dogs have a hair-trigger response while others do not. Individual variations may result from genetic variations between breeds, internal changes brought on by illnesses, the use of medications, or various past experiences. Whether an act can be construed as provocation therefore depends, in part, on the history of the dog and its hereditary make-up. Generally, the argument for provocation is stronger if the dog in question does not have a history of behaving behaving aggressively in a given context and belongs to a breed not known for its aggressive tendencies (e.g., Golden retrievers, Labrador retrievers).

In what context did the incident occur?

The context in which the incident happened needs to be assessed. For example, many dogs are more likely to respond with aggression when they are in their own territory. Certain kinds of aggression in a dog may be enhanced if the dog is habitually chained, if the dog is in the presence of the owner, or if it is forced into a situation that it doesn’t like (e.g., an examining room in a veterinary hospital).

Conclusions about dog bite provocation

In sum, from an animal behavior perspective, various criteria need to be assessed before conclusions are drawn about dog bite provocation. The totality of the circumstances always needs to be taken into account. These include the nature of the plaintiff’s act towards the dog, the dog’s behavioral history and temperament, and the socio-environmental context in which the incident happened. To determine whether the victim provoked the dog’s actions, these factors must be considered in each individual case.

More about dog bite provocation:

• Provocation for facial dog bite by border collie?
• Dog Bite Provocation | Animal Behavior Expert Opinion
  
• Provocation by an intoxicated woman in a dog bite lawsuit in San Diego, California?
• No provocation when man bites dog in Arizona
• Provocation by a Rottweiler in a dog bite attack
• Intoxicated Victims & Dog Bite Provocation
  Richard Polsky, Ph.D. is a bite expert witness in California. Dr. Polsky provides animal behavior expert witness services to attorneys in civil and criminal matters..