Dog bite victims who seek compensation for their injuries may find themselves being blamed by the dog owner for the attack. While California law imposes strict liability for dog bites, defenses such as provocation or assumption of risk may affect a victim’s financial recovery. Nonetheless, the victim of a dog attack may be entitled to compensation even if they are partially responsible for the attack.
Many states adhere to the common law rule that holds the owner of a dog liable only if the owner knew of the dog’s violent nature. Under California’s strict liability law, a victim can recover damages for dog-bite injuries whether or not the owner had such prior knowledge, as long as the attack occurred in a public place or while the victim was lawfully on private property. It is no defense that the owner exercised reasonable care in confining or restraining the dog.
Despite California’s strict liability law, dog owners can attempt to shift blame to the victim, claiming provocation or assumption of the risk, which can reduce or preclude compensation for injuries suffered.
In order to prevail in a provocation defense, a dog owner must prove that the victim engaged in conduct that could foreseeably elicit an aggressive response from a dog, such as menacing actions that made the dog feel threatened. Simply approaching and petting a dog is not provocation, but holding out food may be. Provocation usually is not a defense when victims are children, since they may not fully appreciate the dangers involved.
A dog owner may also raise an assumption-of-risk defense, claiming the victim was fully aware of the risk of attack by potentially dangerous dogs but proceeded to go near them. This defense, though difficult to prove, can bar recovery unless the dog owner was reckless, grossly negligent or intentionally caused an injury.
Under California’s comparative negligence law, provoking a dog is a factor in determining the victim’s share of fault for the attack. Any award of damages will be reduced proportionally. In addition, a dog owner’s reasonable measures to restrain the dog can be factors in reducing liability for the victim’s injuries beyond the bite itself, such as harm suffered in being knocked to the ground during the attack.
To learn more about how the Law Offices of Richard J. Staskus can assist you with your dog bite case in the San Jose metropolitan area, call us at 408-606-9150 or contact us online for a free consultation.