Many dog owners are injured when their dogs are attacked by other dogs. Defense attorneys and insurance adjusters often contend that the victim's recovery should be reduced by their "comparative negligence" or "assumption of the risk." These defenses are based on false assumptions about the "Good Samaritan" and are not supported by case law.
Restatement (Second) of Torts, section 496E (1965) provides:
Section 496E applies to the "Good Samaritan" who is injured while breaking up a dog fight, because the victim's acceptance of the risk is not voluntary: the victim has no reasonable alternative course to avert harm to himself or his dog, and as a separate issue, the victim is only attempting to protect his right to property of which the defendant has to right to deprive him. The property is the victim's dog.
When considering whether a person should be held accountable for negligence, the question is whether she did something unreasonable. Reasonableness is determined in light of the circumstances in which the person finds herself. A sudden dog fight is an unusual, violent, startling and dangerous situation. It is a natural reaction to separate two dogs that are fighting, because the plaintiff herself is already within the zone of danger and stopping the fight reduces the danger to her. Additionally, the human-canine bond is extremely strong and itself compels a person instinctively to stop a dog fight. In fact, human beings are so sickened by dogs fighting each other that every American state has made it a crime to simply watch an organized dog fight (while present at it). Finally, under suddenly violent conditions, a person is not expected to make perfect decisions, but those which would be normal or reasonable in the same exigent circumstances. All of these factors mean that a plaintiff must not be regarded as negligent in attempting to separate two dogs, or as having assumed the risk of injury.
There is no case law directly on point. However, in Davis v. Gaschler (1992) 11 Cal.App.4th 1392, plaintiff was held to have not assumed the risk of injury when she came across a badly injured dog and tried to transport it to a veterinarian for medical attention. The court specifically said, "We do not believe that plaintiff's voluntary act of helping the injured dog would remove her from the class of persons to be protected by the dog bite statute." (Davis at p. 1399.) When two dogs are fighting, they are in the process of injuring each other. Therefore, the reasoning and holding of Davis should be followed in any case where the victim was hurt while attempting to separate two dogs.
See also Marshall v. Ranne, 511 SW 2d 255 (Tex. Supreme Court 1974) the plaintiff was bitten by a hog (that is not a typographical error despite the fact that this website is about dog bites) when the plaintiff left his house to get into his car. The plaintiff knew that the hog was outside his house and that it was known to be vicious. However, the court stated as follows:
We hold that there was no proof that plaintiff had a free and voluntary choice, because he did not have a free choice of alternatives. He had, instead, only a choice of evils, both of which were wrongfully imposed upon him by the defendant. He could remain a prisoner inside his own house or he could take the risk of reaching his car before defendant's hog attacked him. Plaintiff could have remained inside his house, but in doing so, he would have surrendered his legal right to proceed over his own property to his car so he could return to his home in Dallas. The latter alternative was forced upon him against his will and was a choice he was not legally required to accept. W. Prosser, Law of Torts § 68, at 450-453 (4th ed. 1971).
The Marshall court followed the rule expressed in Restatement (Second) of Torts, section 496E.
It should be noted that courts have held that contributory negligence is no defense to a strict liability action based on the one bite rule; this can be applied when the defense of comparative negligence is raised. See Restatement (Second) of Torts § 515, Comment b (Tent.Draft No. 10, 1964):
b. Since the strict liability of the possessor of an animal is not founded on his negligence, the ordinary contributory negligence of the plaintiff is not a defense to such an action. The reason is the policy of the law which places the full responsibility for preventing the harm upon the defendant. Thus where the plaintiff merely fails to exercise reasonable care to discover the presence of the animal, or to take precautions against the harm which may result from it, his recovery on the basis of strict liability is not barred.
For further information about the defenses of provocation, comparative negligence and assumption of the risk, see the following: