Dog bite laws are different from state to state -- some states make it much easier for a plaintiff to win a case. In other states, it's more of a challenge.
The owner of the dog (the defendant) may have few options for a successful defense if he or she is faced with a strict liability dog bite statute, and more defense options may be on the table in a state that applies traditional negligence rules. This article discuses some of the strategies and options for defending a dog bite case under a variety of state rules.
“Affirmative Defenses” vs. Disproving the Plaintiff’s Case
A defendant can win his or her case in two ways: by providing an affirmative defense or by convincing the judge or jury that the person suing (the plaintiff) did not prove all the elements of the plaintiff’s claim.
In any given lawsuit, including a dog bite lawsuit, the plaintiff is required to prove that the defendant is liable. In dog bite lawsuits, as in all civil cases, the plaintiff must present evidence that convinces the judge or jury that it is “more likely than not” (i.e. better than 50/50) that the plaintiff’s version of events is true.
The defendant’s first option for winning a case lies in convincing the judge or jury that the plaintiff’s evidence is too weak to satisfy the "more likely than not" standard. If the defendant successfully does that, the plaintiff loses the case. A common example would be convincing the jury that a key witness didn’t remember enough about the dog bite (who was where, whether the dog was provoked, etc.).
A successful affirmative defense, on the other hand, allows a defendant to win the case even if the plaintiff did prove all the required elements. Instead of disproving the plaintiff’s case by arguing that the evidence is weak, the defendant presents other evidence that proves an “affirmative” defense. A common example is the statute of limitations: a plaintiff with an otherwise winning case will lose if the defendant proves that the plaintiff did not start the lawsuit on time.
Disproving the Plaintiff’s Case in Dog Bite Lawsuits
If a state does not have a strict dog bite statute and follows traditional negligence rules, there are several ways the defendant can disprove the plaintiff’s case.
The first way is to convince the judge that the defendant did not owe a duty to the plaintiff. The most obvious way to do this is by showing that the defendant did not own and was not in control of the dog. It is always up to a judge and not a jury to determine if a duty is owed, and the facts of a case may create other unique opportunities to argue that the circumstances surrounding the bite did not involve the defendant’s duty of due care.
Another way to disprove a plaintiff’s negligence case is to convince the judge or jury that the defendant did not and could not reasonably have known that the dog might bite someone. Before the advent of dog bite statutes, this was probably the most common way for a defendant to win a dog bite case. If a dog had never bitten someone before and showed no signs of being "that kind of dog," a defendant would not usually be held liable.
If a plaintiff in some way provoked the dog that eventually bit him or her, that might also provide an affirmative defense. Some dog bite statutes, however, do not allow a provocation defense. In states that do allow the defense -- either by statute or because there is no statute -- it is typically the plaintiff’s responsibility in the lawsuit to prove that he or she did not provoke the dog, either intentionally or unintentionally. The defendant can then either argue that the plaintiff failed to give convincing evidence of no provocation, or can give his or her own evidence that the plaintiff actually did provoke the dog.
In a state with a strict liability dog bite statute, disproving a plaintiff’s case is much more difficult. Although the statutes can vary, many have a rule along these lines: if the plaintiff was somewhere he was legally allowed to be and a dog bit him, the dog owner is liable. A defendant has few other defenses in states that have a strict liability dog bite statute, other than arguing the plaintiff didn’t have a right to be where he was (which is also an affirmative defense, as described below), that the defendant wasn’t the owner, or that the bite never happened.
If the plaintiff was trespassing at the time of the bite, the owner will not be liable. This is true in states that do and do not have dog bite statutes. A defendant may also be able to argue that the plaintiff contributed to the dog bite or “assumed the risk” of a dog bite. Remember though, that these affirmative defenses will generally not be available in a state with a strict liability dog bite statute.
A classic example might be a delivery person seeing that a vicious, barking dog is off of his chain in a yard and attempting to enter the yard anyway. If those circumstances are treated as “comparative negligence,” the delivery person’s damages will be reduced in proportion to her own level of negligence. If the jury determines she was 30% at fault, she will only be entitled to collect 70% of her damages from the defendant.
Not all states still have an “assumption of the risk” defense for all types of cases. In states that do, our delivery person example could potentially qualify for an affirmative assumption of the risk defense. If the defendant successfully convinces the jury that the plaintiff knowingly put herself at risk, the defendant will win the case outright.