Provocation: the myth

In dog bite cases, provocation is a defense. Generally, the provocation defense is often mentioned but rarely supported by the facts. (If your case presents a bite which occured during an attempted rescuer, see Legal Rights of Rescuers Who Incur Dog Bites.)

The provocation doctrine states that a dog bite is justified under certain circumstances, so that neither the dog nor the owner, harborer or keeper of the dog may be held responsible civilly or criminally. The facts that will be deemed to justify a dog bite are similar from jurisdiction to jurisdiction, but they are not always the same. Generally, actions of the person bitten which would have triggered the doctrine of self-defense if the dog were a person are usually considered to be provocation. For example, hitting a dog and causing it to feel pain usually constitutes provocation. The dog's reaction to the act of provocation, however, cannot be grossly out of proportion to the provocative act itself. Wade v. Rich (Ill. Ct. App. 1993), 618 N.E.2d 1314.

The courts have warned that provocation must be defined narrowly so as not to create an injustice or swallow up the cause of action for dog bite injuries. The Illinois Court of Appeals stated:

Where, as here, the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings, but the words must also be construed with reference to the purposes and objectives of the statute. [Citation omitted.] Where literal enforcement of a statute will result in great injustice which was not contemplated, we will construe the statute to give effect to what must have been reasonably intended by the legislature. [Citation omitted.]

As commonly understood, provocation means an act or process of provoking, stimulation or excitement. . . . These definitions are so expansive, however, that, if taken literally, [the Illinois dog-bite statute] could be interpreted to mean that provocation exists whenever any external stimulus has precipitated the attack or injury by an animal, i.e., whenever the animal's actions are not completely spontaneous. . . . [W]e believe that so literal an interpretation would render the statute largely meaningless, and yield unjust and absurd results.

Robinson, 561 N.E.2d at 114. The court went on to conclude that the determination of what constituted provocation has generally "proceeded on a case-by-case basis." Robinson, 561 N.E.2d at 115; cited with approval in Stroop v. Day, 896 P.2d 439, 271 Mont. 314 (Mont. 1995). Under this type of analysis, provocation may include unintentional acts, provided that the attack that followed was not grossly out of proportion to the act of provocation. Wade v. Rich (Ill. Ct. App. 1993), 618 N.E.2d 1314.

The courts have wrestled with the concept of provocation. "Clearly not every occurrence that stimulates a dog to bite an individual should be a defense under [a dog bite statute which specifies that provocation is a defense but does not define it]. Conversely, provocation should not be required to rise to the level of intentional torture to be a valid defense." Stroop v. Day, 896 P.2d 439, 271 Mont. 314 (Mont. 1995).

The following actions were not considered to be provocation:

• Walking toward a dog did not constitute provocation. Chandler v. Vaccaro (1959) 167 Cal.App.2d 786.
• Holding packages, walking toward a dog and its owner, and addressing the owner did not constitute contributory negligence. Eigner v. Race (1942) 43 Cal.App.2d 506.
• Where the plaintiff was seated in front of the dog, rising up and turning to face the dog did not constitute provocation. Westwater v. Southern Pacific Co. (1940) 38 Cal.App.2d 369.
• Reaching toward a dog to pet him did not constitute contributory negligence. Ellsworth v. Elite Dry Cleaners, etc., Inc. (1954) 127 Cal.App.2d 479.
• Playing with a dog and patting his head did not constitute assumption of the risk. Smythe v. Schacht (1949) 93 Cal.App.2d 315.
• Feeding a dog did not constitute assumption of the risk. Burden v. Globerson (1967) 252 Cal.App.2d 468.
• Helping to wrap and transport an injured dog did not constitute assumption of the risk. Davis v. Gaschler (1992) 11 Cal.App.4th 1392. However, in Ohio it will be left to a jury as to whether doing so was sufficiently tormenting as to constitute a defense under a dog bite statute which made "tormenting" an exception to strict liability. Pulley v. Malek, 25 Ohio St.3d 95 (Ohio 1986).
• In Burden v. Globerson (1967) 252 Cal.App.2d 468 the court ruled that regardless of the dog's breed, one does not assume the risk of being bitten simply by choosing to initiate interaction with a dog .
• Chasing a dog with a fence post four to six weeks prior to being bitten does not constitute provocation. Stroop v. Day, 896 P.2d 439, 271 Mont. 314 (Mont. 1995).
• Extending or dangling one's hands and arms over a fence, into the property of the dog owner, without making quick or threatening gentures toward the dog, does not amount fo provocation. Stroop v. Day, 896 P.2d 439, 271 Mont. 314 (Mont. 1995).

In 19 out of 20 cases, the defense is unavailable, having resulted from guessing and speculation.

Under principles of Common Law there is the assumption that dogs are harmless unless they have previously demonstrated a vicious propensity. This often leads to the related assumption that victims of dog attack have provoked or otherwise precipitated the attack. However, those studies which have attempted to document the context in which an attack has occurred generally show that bite victims are rarely engaging in activity that could legally be considered provocation (i.e., causing physical injury to the animal). In the non-fatal bites surveyed by Beck et al. (1975), the victims had no interaction with the dog, or were walking or sitting in 75% of the cases. In 9.6% the victim was playing with the dog and in only 6.5% could the victim's behavior be classified as provocative. (Lockwood, The Ethology and Epidemiology of Canine Aggression, in James Serpell (ed.) The Domestic Dog: Its Evolution, Behavior & Interactions with People, (Cambridge, U.K.: Cambridge Univ. Press), pp. 132-138.)