This is a common question that was just sent in from Rosa Delacruise out of Oakland California. Rosa says she was at a park one afternoon, she was doing her usual work out and run. With my head phones in and adrenaline already pumping I could was getting fatigued so I Hadley saw the man walking his dog when I tripped right over him.
Now I know I was distracted but I have never in my life seen a vicious dog attack like that. He literally snapped and locked onto my leg. There was so much blood and I have not been able to run since.
At first the man was so sympathetic but as the time went on and the medical bills started pilling up the man became more distant and unreachable. The dogs owner said the attack was provoked? Now I am broke and gaining weight.
Luck is on Rosas side today because we decided to ask our Friends over at Oakland Dog Bite Attorney, An Oakland based group who dedicates themselves to Dog Bite victims. http://www.oaklanddogbiteattorney.com
Dana from ODBA says this. Rosa, you need to pick up the phone and make the call, your lawsuit process should of been started by now and you are only delaying the inevitable.
What Is Provocation in a Dog Bite Case?
When someone hears the word “provocation,” teasing or poking or being mean to a dog is what typically comes to mind. While that kind of behavior counts as provocation, other unintentional actions can also lead to a provocation defense.
For example, if a plaintiff is bit after stepping on a dog that he or she did not see, the defense could be available even though the plaintiff technically did nothing wrong. The key is that something happened to the dog to make it behave aggressively.
Often the Plaintiff Must First Prove Provocation Did Not Occur
Although referred to as a defense, technically in most cases the plaintiff must prove, as part of his or her case, that the dog was not provoked. The plaintiff cannot “conveniently” leave out facts, and he or she must convince the judge or jury that it was more than 50% likely the dog was not provoked (under the “preponderance of the evidence” burden of proof in civil cases) . The defendant can then argue that the plaintiff failed to prove the dog was not provoked, either by arguing why the plaintiff’s evidence is weak or by presenting new evidence.
Circumstances and the Dog’s Past Behavior Matter
While the law does not talk about a “reasonable dog” standard of behavior, that standard is implied when applying the provocation defense.
If an overly sensitive dog reacts in an overly aggressive manner to a slight provocation, the defendant (the dog owner) will likely be held liable. What is important is whether it was foreseeable or predictable that the dog would be provoked under the circumstances. Therefore, all of the circumstances surrounding the attack matter. For example, if the dog is a known aggressive breed and is eating when the plaintiff puts her hand near the dog’s face, a judge or jury might find that the dog was provoked.
Keep in mind, however, that if the defendant knows his dog is more aggressive than people might expect, he is under a duty to keep people safe from the dog. That means the provocation defense is less likely to be successful if the circumstances were such that the defendant should have warned the plaintiff or otherwise made the situation safe.
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