A dog bite claim is a personal injury claim (or, in the most serious cases, a wrongful death claim) that should not be taken lightly. Regardless of whether you are a victim or a defendant, you need to be aware of potential defenses to dog bite claims that can be used either in court or during settlement negotiations. Following are some of the most commonly used defenses.
The Dog is Not Aggressive
In states that hold a dog owner strictly liable for his dog’s aggressive behavior this defense can only be used to assert that the defendant’s dog did not commit the attack. Other states, however, apply a “one bite rule” that exempts a dog owner from liability if he had no reason to believe that the dog was aggressive before the victim was bitten. In these states, the owner can successfully defend the lawsuit if he can submit enough evidence to show that the owner should have known that the dog was dangerous.
The Dog Unexpectedly Escaped an Enclosure
In states that require the victim to show that the owner was at fault in order to win, the victim might claim that the defendant violated an animal control law by, for example, “allowing the dog to roam freely without a leash”.
In many states, proving this much would be enough to hold the dog owner liable under the “negligence per se” doctrine. The dog owner might defend against this claim by asserting that the dog escaped its enclosure in a manner that the owner could not have anticipated (by digging underneath the owner’s fence, for example) and that the owner did not “allow” the dog to roam freely. In states that hold owners strictly liable for damages caused by their dogs, however, this defense will be useless.
Failure to Gather Sufficient Evidence
Many if not most dog bite cases are lost because one side fails to submit sufficient evidence. In a civil lawsuit, the victim doesn’t need to prove liability “beyond a reasonable doubt” as in a criminal prosecution – he must prove only that the defendant is “more likely than not” to be liable. This relaxed burden of proof makes it particularly important for a defendant to actively submit evidence to defend himself. Some of the important evidence in a dog bite claim includes:
- Evidence of ownership (even though a non-owner can be held liable under certain circumstances)
- Animal control records (proving that the dog had bitten before or often ran stray)
- Veterinary records (to prove that the dog had been in fights with other dogs, for example)
- Witness statements (obtained by a skilled interviewer who knows how to word questions)
- Police reports
- Hospital and medical records for the victim
- Paramedic reports for the victim
- Reports from the dog’s trainers, if any
- Breeding documents
- CCTV videos that might have recorded the attack
Using Medical Evidence to Discredit the Victim’s Testimony
Certain types of medical experts can examine a dog bite victim’s wounds and reach scientific conclusions about how the attack proceeded – a puncture would suggests a different type of attack than a tear wound, for example). If these conclusions contradict the victim’s testimony, they could be used to discredit the victim.
Regardless of whether you are a victim of a dog bite or a defendant against a dog bite claim, a skilled dog bite attorney can help you prevail, whether the case in concluded in court or at the settlement table.