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.)
Research has established a number of factors associated with aggression, including the following:
Chaining and tethering
Chaining, tethering or tying a dog to a stationary object causes a dog to act viciously toward people.
- 26-28% of dogs involved in fatal attacks were chained at the time. Journal of the American Veterinary Medical Association: Dog Bite Related Fatalities from 1979 through 1988 by J. Sacks. R. W. Sattin, & S. E. Bonzo. Volume 262, pages 1489-1492.
- Since 2003, at least 450 Americans have been injured or killed by chained dogs; the majority of the victims were children. Chained Dog Attack Summaries by PETA.
- Chaining or tethering has been declared illegal in many communities. See Table of State Dog Tether Laws by Animal Legal and Historical Center, and Dogs Deserve Better, a website that advocates against chaining and penning dogs. California was the first state in the nation to prohibit chaining. See Health and Safety Code Section 122335, the California law prohibiting tethering. A minority of USA states have anti-chaining laws (see, for example, Texas) or currently are considering the enactment of such laws. See Dogs Deserve Better: U.S. Anti-Tethering Legislation By State.
- Chaining also is inhumane. Chaining and Tethering ;by the Humane Society of the USA. Chaining by PETA.
- See The Public Safety and Humane Implications Of Persistently Tethering Domestic Dogs, by New Mexico Department of Public Safety (2008), for an in-depth review of this issue.
Male dogs are more aggressive than females, and most of the aggression is by intact males. Male dogs accounted for 70% - 87% of the attacks studied, and 60% were unneutered males.
- Readings in Companion Animal Behavior. Victoria L. Voith & Peter Borchelt. (1996: Trenton: Veterinary Learning Systems) pp. 226, 235.
- Public Health Reports: The Ethology of the Dog Bite. A. M. Beck, H. Loring, & R. Lockwood (1975).
- A Study of Animal-to-Human Bites by Breed in Palm Beach County, Florida. D. L. Moore. 1987.
- Journal of the American Veterinary Medical Association: Selecting Pet Dogs on the Basis of Cluster Analysis of Breed Behavior Profiles and Gender. B. L. Hart & L. A. Hart (1985, Volume 186, pages 1181-5).
Pet store dog or puppy mill dog
Dogs from pet stores and "puppy mills" have a high incidence of dominance-type aggression and defensive or fear aggression.
- Early Experience and the Development of Behavior by James Serpell and J. A. Jagoe, in The Domestic Dog, Its Evolution, Behavior, & Interactions with People. James Serpell, editor. (1995: Cambridge University Press).
- The Puppy Report. Larry Shook. (1992.) Lyons & Burford, publishers).
Inadequate socialization prior to the age of 14 weeks results in a higher incidence of fear aggression.
- Science: Critical Periods in the Social Development of Dogs. by D. G. Freedman, J. A. King, & O. Elliot. (1961, volume 122, pages 1016-1017).
- Genetics & the Social Behavior of the Dog. J. P. Scott & J. L. Fuller. (1965: Chicago: University of Chicago Press).
Inadequate training and discipline result in dominance aggression.
- Effects of Owner Personality and Attitudes on Behavior by Valerie O'Farrell, in The Domestic Dog, Its Evolution, Behavior, & Interactions with People. James Serpell, editor. (1995: Cambridge University Press).
Poor health results in aggression.
- Clinical Behavioral Medicine for Small Animals, by Karen Overall (1997: Mosby Year Book, Inc.), p. 2.
- See the studies of the Chow, in which approximately 50 genetic diseases have been shown to result in aggression.
- Control of Canine Genetic Diseases. George a. Padgett. (1998: ; Howell Book House) p. 199.
- Genetics of the Dog. Malcolm Willis. (1989: Howell Book House).
- Behavior Problems in Dogs. William E. Campbell. (1975: Goleta, CA: American Veterinary Publications, Inc.) p. 88.
- Dog World: Thyroid Can Alter Behavior by Jean W. Dodd, D.V.M. (October 1992) pps. 40-42.
Pain and fear
Pain and fear result in aggression.
- Clinical Behavioral Medicine for Small Animals, by Karen Overall (1997: Mosby Year Book, Inc.)
- Readings in Companion Animal Behavior. Victoria L. Voith & Peter Borchelt. (1996: Trenton: Veterinary Learning Systems)
Submitting to the first vaccination after the first 8 weeks of life results in greater aggression.
- Early Experience and the Development of Behavior by James Serpell and J. A. Jagoe, in The Domestic Dog, Its Evolution, Behaviour, & Interactions with People. James Serpell, editor. (1995: Cambridge University Press), pp. 97 et seq.
It unfortunately is common for dogs to direct their aggression against people, by biting them. Two percent of the population of the USA is bitten by dogs every year. (See Statistics.)
There is much in the scientific literature of animal behavior that sheds light on the causes of dog attacks. As you review the literature, it is interesting to note that a dog owner is directly responsible for the presence or absence of most factors that determine whether a dog will bite.
A report by the American Veterinary Medical Association, Task Force on Canine Aggression and Human-Canine Interactions, entitled A Community Approach to Dog Bite Prevention, refers to five factors commonly associated with dog bites:
- Breed and "parents" of the attacking dog: this refers to aggression as a type of behavior that has been bred into certain breeds of dogs, and characteristics of the "sire" and "bitch" that produce an individual dog.
- Socialization of the dog: how the dog has been desensitized to stimuli, especially stimuli produced by children. Poor socialization results in less inhibition to bite and engage in other undesirable behavior.
- Training of the dog: the nature, degree and quality of training. A dog that has been trained to threaten people is an obvious danger, but so is a dog that has been poorly trained or not trained at all.
- Health of the dog: whether the dog was sick or injured. When a dog is sick or injured, or in pain, biting can result for a number of reasons.
- Behavior of the victim: this includes any behavior (i.e., a baby rolling over on a bed), not just provocation (i.e., hitting the dog).
There are many types of aggression among dogs. Classes of aggression include the following (Borchelt, P.L. and Voith, V.L. 1982. "Classification of Animal Behavior Problems," Vet. Clin. North Am. Small Anim. Pract. 12:571-585):
- Dominance aggression: aggressive behavior usually directed to family members who take something from the dog, pet it, hold it, pick it up, or disturb it while it is resting.
- Defensive or fear aggression: directed to family or strangers who approach too quickly or too closely when the dog is afraid.
- Protective/territorial aggression: directed to strangers to approach the owner or the home of the owner.
- Predatory aggression: directed to small, quickly moving animals and children, especially where more than one dog is involved.
- Pain-elicited aggression: directed to family or strangers who approach or touch when the dog is in pain or injured.
- Punishment-elicited aggression: directed to family or strangers who hit, kick or verbally assault the dog.
- Redirected aggression: directed to family, strangers and animals who approach or touch the dog when it is aggressive in another context
Dog bite injuries can occur when a dog's motive to bite a person exceeds his inhibition to bite.
Motives to bite
Factors that determine whether a dog will bite
A dog attack danger scale to keep you and your kids safe
Chaining, being male, and other causes of dog bites
Provocation: the myth