Dog Bite Law: 50-State Survey under Personal Injury
⚖️ 1. Provocation by the Plaintiff
Explanation:
If the victim provoked the dog—either intentionally or unintentionally—the dog owner may raise this as a defense. Provocation can include teasing, hitting, pulling the tail, or otherwise tormenting the dog.
Case Law:
Koperski v. Husney, 369 N.W.2d 496 (Minn. Ct. App. 1985)
The court held that provocation was a valid defense, and a jury must determine whether the plaintiff's actions—teasing the dog—caused the dog to bite.
Nelson v. Lewis, 130 Cal. App. 3d 878 (1982)
The court found that a dog owner was not strictly liable where the plaintiff provoked the dog by entering a fenced yard and startling it.
⚖️ 2. Trespassing or Unlawful Entry
Explanation:
Under many strict liability statutes, the dog bite victim must be lawfully on the property. If the plaintiff was trespassing or unlawfully on private property at the time of the incident, this can be a complete defense.
Case Law:
Restatement (Second) of Torts § 509 – Strict liability does not apply to trespassers.
McBride v. Orr, 960 P.2d 157 (Colo. 1998)
The court held that a landowner was not liable under Colorado’s dog bite statute because the plaintiff was not lawfully on the premises.
Gravley v. Lamanna, 345 S.C. 412 (2001)
A dog owner was not liable for injuries sustained by a person who entered the property uninvited and was bitten.
⚖️ 3. Assumption of Risk
Explanation:
If the injured person knew of the dog’s dangerous tendencies and voluntarily exposed themselves to the risk, the owner may argue assumption of risk. This defense can limit or bar recovery under both negligence and strict liability theories in some jurisdictions.
Case Law:
Barmore v. Elmore, 222 Ill. App. 3d 694 (1991)
Plaintiff had knowledge of dog’s viciousness and voluntarily entered the home. The court ruled assumption of risk applied.
Khan v. Heidinger, 545 N.E.2d 963 (Ill. App. Ct. 1989)
A professional dog groomer who was bitten by a known aggressive dog was found to have assumed the risk.
⚖️ 4. Comparative or Contributory Negligence
Explanation:
If the jurisdiction follows comparative or contributory negligence, and the plaintiff's own negligence contributed to the injury, the damages may be reduced or barred.
Contributory negligence (only a few states): Any fault by the plaintiff can bar recovery.
Comparative negligence: Plaintiff’s damages are reduced in proportion to their fault.
Case Law:
Alaskan Village, Inc. v. Smalley, 720 P.2d 945 (Alaska 1986)
The court recognized that comparative negligence could reduce the plaintiff’s award in a dog bite case.
Morris v. Weatherly, 488 So. 2d 508 (Ala. Civ. App. 1986)
In a contributory negligence state (Alabama), the court found for the defendant because the plaintiff ignored warnings and provoked the dog.
⚖️ 5. No Prior Knowledge of Vicious Propensities (Common Law Defense)
Explanation:
In jurisdictions that follow the “one-bite rule”, the dog owner may not be liable unless they knew or should have known of the dog’s dangerous propensities.
Case Law:
Gehrts v. Batteen, 2001 SD 10, 621 N.W.2d 223 (2001)
A South Dakota court ruled in favor of the defendant because the dog had no history of aggression, and the owner had no reason to believe the dog was dangerous.
Carter v. Metro North Assoc., 680 N.Y.S.2d 239 (1998)
A landlord was not liable because the plaintiff failed to show that the landlord knew of the dog's vicious propensities.
⚖️ 6. Lack of Causation
Explanation:
Even if a dog bites someone, the plaintiff must prove the bite caused the injuries. If there's no medical evidence or the injuries were pre-existing, this may serve as a defense.
Case Law:
Ellis v. Zohar, 26 A.D.3d 252 (N.Y. App. Div. 2006)
The court found no liability where the medical evidence failed to prove that the plaintiff’s injuries were caused by the dog.
⚖️ 7. Statutory Exemptions (e.g., Police or Military Dogs)
Explanation:
Some jurisdictions exempt law enforcement or military dogs from liability when performing official duties, such as apprehending suspects or defending officers.
Case Law:
Robinson v. City of St. Joseph, 329 S.W.3d 605 (Mo. Ct. App. 2011)
Police were not liable under the dog bite statute because the dog was acting in the line of duty, and the statute provided an exemption.
Summary Table of Defenses
| Defense | Legal Basis | Case Example |
|---|---|---|
| Provocation | Common law and statutes | Koperski v. Husney |
| Trespassing | Statutory strict liability | McBride v. Orr |
| Assumption of Risk | Common law and strict liability | Barmore v. Elmore |
| Comparative/Contributory Negligence | Varies by state | Alaskan Village, Inc. v. Smalley |
| No Prior Knowledge | "One-bite rule" | Gehrts v. Batteen |
| Lack of Causation | Causation element of tort | Ellis v. Zohar |
| Statutory Exemptions | Statutory defenses | Robinson v. City of St. Joseph |
Final Note:
The availability and effectiveness of these defenses vary depending on:
Whether the jurisdiction applies strict liability, negligence, or the one-bite rule.
The facts and conduct of the parties.
State statutes governing animal liability.
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