Legal question: How is a dog "provoked"

Inspired by a real case, but no details provided.

My state law says that a dog is to be destroyed if he attacks a person and causes more than $2k worth of medical injuries, “unless provoked.”

There are no cases in my state. I’m sure you legal beagles can see the problem: What is provocation of a dog? A poke in the back? The ear? The eye?

Or is it a beating with a baseball bat while backed in the corner?

Has your state opined on what provocation relieves a dog from responsibility? Is it the reasonably prudent dog? :slight_smile:

Take his bone?

Do you want legal opinions only or information from experienced dog people?

I have done some study on this subject in my area. Here is what I have learned (note: I am not a lawyer).

San Francisco has what is called Vicious and Dangerous Dog hearings. These are set up to adjudicate the fate of dogs that have attacked and/or bitten. However, these are administrative law hearings rather than judicial hearings. The hearing officer can rule that a dog is vicious and dangerous, and the penalties can range from rules about leashing and muzzling the dog to destroying the dog. The hearing officer can also rule that the dog is not vicious or dangerous. The grounds for this are usually that the dog is not habitually dangerous and that the incident was not typical of the dog’s behavior (examples below, for those who are interested). I have not seen any instances, although they may exist, where the hearing officer ruled that the dog was provoked. Note: the hearing officer is not allowed to make any monetary penalties, that would have to be done through a judicial proceeding.

The thing is that legal precedent doesn’t seem to come into it. These decisions cannot by statute be appealed, except by applying for a Writ of Mandamus alleging that the hearing officer failed in some provable way in the performance of his duty. One case I remember is that the hearing officer had ex parte communications (i.e. spoke to one of the parties in the case outside the hearing) without the other parties present. That resulted in a Writ that overturned the decision and ordered a new hearing.

So in our jurisdiction, it’s entirely up to the hearing officer. The hearing officer is employed on sufferance of the executive branch of city government, so he could be let go at any time without cause, and if he made too many bad decisions that could easily happen.

There is language in state law describing what constitutes a dog bite, and in both state and local laws about what constitutes a vicious and dangerous dog (with similar wording about provocation as is in the OP). I don’t remember seeing any statute or city code about what constitutes provocation.

Example cases: 1) the couple who owned the dog were standing outside their front door having a heated argument, something that apparently didn’t happen often. The front door, usually latched, was partway open. Their dog ran out the door, across the street, and attacked and bit a passerby who worked nearby. This passerby claimed that she was so traumatized that she couldn’t even go to that street to go to work any more. Decision was that the dog was triggered by an unusual and upsetting event and that this was not normal for the dog. No penalty.

  1. A man was walking his small dog down the sidewalk, when a German Shepherd came running out of the house, through the gate, and attacked the small dog and then the man when he tried to interfere. The owner said that some furniture was being moved out of the house that day and that the door and gate, usually securely closed, had been accidentally left open briefly due to this moving. They had already changed the gate mechanism to always close and latch automatically. Decision was that this was an opportunistic attack that wouldn’t happen again now that the gate had been fixed, and the dog was not vicious and dangerous. (The complaint probably used the word “unprovoked” but it did not appear in the decision). No penalty.

  2. An attendant was cleaning dog cages in the city shelter. While cleaning one dog’s cage, a siren suddenly sounded outside; the dog was startled and bit the attendant one time. This never even came to hearing because the shelter manager decided that it was not the dog’s fault, and that it was what was called “kennel behavior” not normal behavior. No penalty.

None of these decisions mention provocation or the lack thereof.

IANAL, but I have had dogs my whole life and am involved in animal rescue/advocacy, as well as long time volunteer at my local shelter. The thing I see the most that “provokes” a dog is parents allowing a child to mistreat the family dog by sitting on it, riding it like horse, pulling it’s ears/tail, taking toys or food, etc. Then suddenly the “dog just snaps”! Um, no, the dog has been enduring torture and finally has had enough and responds the only way it knows how. Then it’s dumped at the shelter to be destroyed for biting the kid.

Here is some discussion of case law. Provocation doesn’t seem to take much to establish. One case, from my second link, particularly jumped out at me – the plaintiff’s damages were reduced due to comparative negligence simply because he had greeted the dog by putting his face close to it. Note this line:

In the landmark case of Spot v Smith it was established that a person can pretend to throw the ball while holding it in their hand up to three times within a single session of “Get the Ball”. But after that, the canine is entitled to give the person a guilt-inducing look. Anyone who does not discontinue the deceptive practice and throw the ball in a genuine fashion after this is subject to being bitten.

A big issue with determining if a bite was “provoked” is there isn’t always objective testimony. Typically the victim claims the attack was entirely unprovoked and out of the blue, either because they couldn’t interpret the warnings the dog was giving or out of a desire to conceal their own malfeasance (or even win money). Within limits, the dog’s legal guardian(s) will of course tend to want to protect their loved one (depending on the severity of the behavior involved).

A typical provocation might be a teenager poking at a tethered dog with a stick, or throwing rocks at a fenced dog. No one else is around to see, because the teenage malefactor has specifically chosen to do this only when unobserved. Something goes wrong – the other gate is open, the rope snaps, what have you – and the teenager tells everyone the savage dog attacked for no reason. How does the law have any chance of correctly assessing the truth? The dog cannot talk.

I’m nothing at all like a lawyer, but trying to think of it in a legal-ish way I think I see two basic (maybe compatible and/or complementary) methods of determining that a dog was provoked:

  1. A dog-behaviour expert analyzes how the person treated the dog, looking for specific signals the dog would have been receiving.

  2. A human-behaviour expert analyzes how the person treated the dog, looking for specific signals the person would have been sending.

Thanks. Wow, cases are all over the place and it is hard to generate a clear rule. This is troublesome:

That is every dog bite isn’t it? If I’m walking down the street and a dog charged out of its yard and mauls me, doesn’t my walk down the street could as provocation under that definition?

I don’t think so, unless you were taking an additional action or there were other mitigating circumstances, as mentioned up thread. Dog owners generally have a responsibility to properly contain their animals. Note that proper containment can vary widely by the community. A rural community may have no guidelines, and a suburban one may be very specific, down to the fencing, locks and so on.

Other types of provocation also could include an intruder on the property. An attack or perceived threat to the residents or owner of the animal (note that some communities will require appropriate signage on the property if your dog might attack intruders). Inappropriate handling of an injured or distressed animal. Illness. Another animal that behaves inappropriately, such as an attack while walking, intrusion on the property.

You simply walking down the street should not constitute provocation under most circumstances.

The cite goes on to say

I don’t know that walking down the street is an instance of foreseeably eliciting a bite.

Regards,
Shodan, Who is Rather Obsessive about Keeping Leet the Wonder Dog[sup]TM[/sup] Leashed, Head Collared and Under Control During Nice Walks

Hmmm, well, foreseeable by someone experienced with dogs, or someone experienced with THAT dog, or just “a reasonable person”, or just any person at all?

With some dogs, there are things you could do to make them bite you that wouldn’t be obvious unless you understood dog behaviour. There are other dogs that would be very unlikely to bite anyway. And so on.

My late dog Widget (Border collie/Jack Russell cross) got into a little spot of trouble with Animal Control over a nip. I had put a couch in the back of my pickup that was just long enough that it jammed the tailgate catch and I walked over to the neighbor’s to see if I could get a hand with it, it was after dark at the time. Neighbor’s son came over with a friend of his–Widget knew the son but the friend was a stranger who never acknowledged Widget’s presence. As they came up to the truck they were all in close proximity to me, a trigger for a protective herding dog, and I told the guys to hold off a second while I put the dog into the back yard. Friend paid no attention, went up to the truck and started shoving and pulling at the tailgate and Widget nipped him in the back of his calf. He was wearing jeans, the nip was a very typical herding dog nip–meant to control rather than to hurt. He hollered and rounded on Widget and I hollered back for him to just STOP, grabbed the dog and put him behind the fence. Day or so later the Animal Control officers came by and asked to see Widget, who I brought out on a leash and he immediately came up to both officers and said howdy. I told them the circumstances, they both said the dog was provoked and nothing else came of it, but they did warn me to make sure it never happened again. That was the first and only time he ever put a nip on a person, but the combination of an unknown man being physical around me and messing with Widget’s truck, after dark, was too much for his control freak herding dog brain. The dude was lucky it was Widget and not Bear, because Bear is way more protective and alpha and has a way bigger set of teeth too. :wink:

I’ll never forget a scene at a local dog pound that my Mom and I were visiting when I was a kid. Mom was making friends with a dog in a cage who was licking her hand and wagging his tail, when one of the keepers came up to her and told her to step back because that dog was vicious. When she expressed doubt about that, the keeper picked up a large tree branch that happened to be nearby and charged the dog head-on, crashing the wood weapon against the enclosure. The dog reacted predictably, and became quite ferocious towards the keeper, who said, “See? That mutt’s dangerous!”

Now that’s provoking.

I just got over a bad dog bite. It was my fault. I put my hand over his head to check his ID on his collar. I knew better. I have been around dogs my whole life. Turns out this dog was somewhat vicious. His owner would pick his dogs up by the collar and tail and lift them into dog boxes in his truck bed. He had a right to be mad, IMO. A sheriff’s deputy came out and talked to me about pressing charges. I didn’t really want to, I just think the dog was doing what he could to keep me from jerking on his collar. He endured this with owner, I was just another person reaching over his head. Mr.Wrekker was nearly bitten catching the dog after I was bitten. So we did press charges. The dog owner gave up the dog to the sheriff and paid my medical bill. I am fairly certain the dog was destroyed. I hate it. It wasn’t the dogs fault. The dog was provoked, though not by me.

There was a vicious and dangerous animal in the room. But it wasn’t the dog.

My family used to own a lake cottage. One summer when I was a toddler I was up there with my mom & our dog (I think my father was supposed to come up the next day). Two missionaries, both young men, came to the door; my mother wasn’t interested and politely asked them to leave. One of them got a little overzealous and stuck his foot in the door so she couldn’t close it. This upset my mother, and the dog picked up on that and ended up attacking said missionary. Who ended up on the ER to get stiches and sued us. He lost his case and ended our court costs. The key factor was him sticking his foot in the door after being told to leave; the judge ruled he was trespassing and the dog was merely protecting it’s owner. My mother joked she could’ve gotten away with shooting him at that point.