Provocation

The Government has the burden to prove that an attack was unprovoked —It is not a defense to be proved by the owner

Example: Marion County Ordinace

Showing the attack was "unprovoked" is required and Marion county's burden

The Marion County Ordinance's definition of dangerous dog in Section 4-2 makes it the government's burden to prove the attack was "unprovoked."  The Ordinance defines it as follows:

Unprovoked attack means that the victim who has been conducting himself or herself peacefully and lawfully has been bitten or chased in a menacing fashion or attacked by a dog. Where an animal is attacked on its owner's property by another animal off it's owner's property, the attack will be presumed unprovoked, absent clear evidence to the contrary.

Interestingly, F.S.§ 767.11 does not include in its overall definition the requirement that any attack be unprovoked.  Provocation is only an issue when the attack (or scare) is in connection with a person.  F.S. § 767.11(1)(d) states:

(d) Has, when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, provided such actions are attested to in a sworn statement by one or more persons and dutifully investigated by the appropriate authority.

F.S. § 767.11(2) further defines provocation as:  

(2) "Unprovoked" means that the victim who has been conducting himself or herself peacefully and lawfully has been bitten or chased in a menacing fashion or attacked by a dog.

It would appear, then, that the Marion County Ordinance is broader in terms of allowing provocation as a defense in an animal upon animal attack.

The defense of provocation is ill defined at this point.  There is not much case law on the issue, and the concept is an elastic one.  Can a cat provoke a dog just by existing in the same visual space?  If a cat arches his back in the street and then runs on his property and is attacked, does that constitute provocation?  If you hit a dog to chase it off your property and ten minutes later it is aggressive to animal control when it is picked up, has it been provoked? Can  a child of four provoke a dog? The issues are many, the case law sparse.

 

Dangerous Dog Provocation Cases

Alaska

Haggblom v. City of Dillingham, 191 P3rd 991 (Alaska S.Ct. 2008) - The only case I could find that deals in a dangerous dog context with the provocation issue. The problem with the case is that the facts were clear that the bite was not provoked, so there was not much to work with legally. The case was affirmed, but the concurring opinion discussed all of the problems with trying to define provocation (and the lack of any standards leaving animal control personnel to decide for themselves), and having an ordinance that treats all biting dogs alike, without considering the severity of the injury.

Ohio

State v. Cowan, 2003 WL 21517981 (11th Dist. 2004) - In dicta, the court states that statutory requirement of reasonable belief precluded a determination that a dog was dangerous simply because it approached a hypersensitive or unreasonably fearful person...an ordinary person would be able to determine the type of conduct that would cause a dog to be deemed a dangerous dog. 

Civil cases (not in the dangerous dog context) discussing provocation

Arizona

James v. Cox, 634 P.2d 964 (Ariz. App. 1981) allowed testimony as to the dog's lack of aggravation or provocation around children, the theory being that this would be probative as to whether the dog was likely to be provoked. There was testimony in the case that the child hit the dog and the court held unintentional provocation was a defense. While this case is not a "dangerous dog" case, there is no reason why its reasoning can't be applied in defense of a dangerous dog. The court did say that evidence of dog's gentle nature not relevant on the same issue.

Florida

Porter v. Allstate, 497 So2d 927 (5th DCA 1986) - Involved F.S. 767.04. The court held that a four year old child who pulled up a dogs ears and was subsequently bitten could mischievously provoke a dog despite his age and inability to be "negligent."

Illinois

Kirkham v. Will, 724 N.E.2d 1062 (Ill. 5th Dist. 2000) - Personal injury claim in which provocation was a defense. The court held that provocation could be intentional or unintentional, and would be reasonably expected to cause a normal dog in similar circumstances to react in a manner similar to that shown by the evidence; taking into account both what a person would normally expect and how a normal dog would react.

VonBehren v. Bradley, 640 NE 2nd 664 (Ill. App. 4th Dist 1994) - Held that a dog owner has no common law duty to control the dog's response to acts of provocation directed toward it.  Most notably, the court said that provocation is measured solely from the perspective of the animal.

Robinson v. Meadows, 561 NE 2d 111 (Ill. App. 1990) - Ruled that a child's scream, while provoking the dog attack, was insufficient to account for the savagery of the dog's assault or to amount to provocation.

Nelson v. Lewis, 344 N.E. 268 (Ill. App. 1976) - Toddler capable of provocation in case for damages under dog damage statute.  Provocation can be intentional or unintentional, thus the toddler could unintentionally provoke a dog.

Streichman v. Hurst, 275 NE 2d 679 (Ill. App. 1971) - Held that a mailman spraying mace on dog was self defense, not provocation. 

Iowa

Rogers v. Dittman, 2002 IA 255 (Iowa Ct. App. 2002) - Allowed dog training expert to testify regarding a re-enactment of the alleged incident and that barking was not correlated with biting behavior. This ruling was based on failure to preserve an objection to such testimony, however. The court stated that the dogs behavior at times other than the date of the incident was relevant to the issue of whether he attacked or attempted to attack Plaintiff. 

Louisiana

McBride v. XYZ Ins., 2006 WL 1751771 (La. App. 2nd Cir. 2006) - Held that an adult guest's conduct of swatting a dog with a shoe after the dog released a child's arm was not provocation and Defendant was strictly liable for the injuries. Plaintiff's actions were a natural and inevitable reaction to seeing her child's arm in the dogs jaws and not an intentional provocation.

Michigan

Koivisto v. Davis, 2008 WL 81559 (Mich. App. 2008) - Held in a civil case that the plaintiff's injuries sustained when rushing to defend her cats which were being attacked by Defendant's dogs was not provocation, allowing her to recover for her injuries. The court said that it was immaterial that she was protecting her cats. She could have been defending a baby, a newspaper, or a rose bush and she still would have been entitled to recover for her injuries under these circumstances.

Ohio

Quellos v. Quellos, 643 N.E. 2nd 1173 (Ohio App. Ct 1994) - Held that under a strict liability statute, evidence of dog's gentle nature was irrelevant.

Dangerous Dog Law

Helping to defend our best friends. Dangerous Dog Law (DDL) focuses on the legal defense of allegedly dangerous dogs. DDL is a member of the Pit Bulletin Legal News Network.

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