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Expert Tips: Dog Bites And Pet Related Injury Cases

Whether you are an attorney who handles dog bites and pet- related injury cases as part of your practice or simply a dog owner who may someday have to deal with the myriad issues that can arise if your dog should injure someone – the more prepared you are, the better your case or situation will probably go.

All in all, 32 states including California have instituted dog bite statutes that make the owner “strictly” liable for any injury or property damage their dog causes. Varying according to the state, the defense has to prove that the victim provoked the dog in order to minimize or even escape liability. The only other defenses are that the victim was trespassing or that the defendant is not the owner/caretaker of the dog. In California, dog owners are subject to massive civil liability for attacks by their dogs. The state allows a plaintiff to sue on two strict liability causes of action arising out of a single attack - one created by statute and one based in common law. (See Priebe v Neslon (2006) 39 Cal. 4th 1112.)

In California, a dogs teeth don’t have to break the skin or even make contact with the skin for it to be considered a bite.(See Johnson v McMahan (1998) 68 Cal. App. 4th 173,176) If a dog only grabs the edge of someone’s pants with their teeth, it is still considered a bite and any resulting injury to the victim will fall under the statute.

This article intends to offer insights into the discovery process as it specifically relates to dog bites and other pet-related injuries by examining a number of important issues that are commonly missed, ignored or poorly done by attorneys during litigation.

1: EVALUATE THE DOG
A video presentation of the defendant’s dog is possibly the most powerful evidence to determine if the dog has dangerous or vicious propensities. If the dog is displays aggression during a professional evaluation, each member of the jury will be able to fully experience that behavior at trial. Having this knowledge will help the adjuster in several ways. Firstly, if the defendant is claiming that his or her dog is not aggressive, it diminishes the insured’s credibility and affords a more realistic evaluation of the case.

Secondly, the adjuster has the opportunity to experience the plaintiff’s most damaging evidence against their insured, which should lead to an early settlement. On the other hand, if the dog is shown to truly be non-aggressive then a powerful piece of evidence in opposition to the plaintiff’s account is available for settlement negotiations or trial.

Of course, it is important that the evaluation be set up correctly and that no opportunity to view and record the dog’s unprovoked behavior in multiple settings and situations is missed. There are many questions that have to be answered and planned for when setting up the format for an evaluation. Was another dog involved? Did the incident happen on the defendant’s property or somewhere the dog would relate to as neutral territory? Has the defendant made any statements that could be tested during the evaluation? Which testing protocol should be used? The goal is to set up a fool-proof and professional evaluation, as soon as possible after the incident so that every bit of information possible is obtained.

Immediacy is a prime factor as, so often, the dog is given away, disappears or dies for any of a number of reasons; the opportunity to evaluate the animal is gone and with it a possible turning point in the plaintiff’s case. Fortunately, a solid presentation can be conducted even if the dog is no longer available, but no other evidence sums it up quite as well or intensely.

2: SCENE INSPECTION
If a dog living in the defendant’s home also spends time inside the house, it is important to inspect inside the home as well. Chewed door or window frames, scratches on the door, the dog’s bed or lack of one, where the dog slept, photos of dogs on the wall…all give you a sense of how the dog was treated, behaved at home. A plethora of toys in every room gives a lot of information about whether the defendants were indulgent with their dog. Inspecting leashes, collars, chains, dog houses, food bowls, kennels, yards, toys etc. also provide a wealth of information about the dog to someone who deeply understands the human/canine companion bond and how it influences behavior. Do they use a choke or prong collar? Is their leash extendable to 15 or 20 feet? Is the water in the bowl dirty?

Does the fence meet the standard for containing a dog of this size? Is there any evidence that the dog was aggressive at the fence and/or property boundaries?

3: THE BEST INTERVIEWER
Often times, statements of witnesses are taken by people experienced in interviewing techniques but who have little experience in animal behavior. As a result, the evidence they discover leaves openings that can be explored by the defense. What if a witness gives a statement that the dog was aggressive and it scared them? That sounds like solid evidence, but what does it really say? Aggressive is a general term that can mean many things. In one case, the witness who labeled the dog aggressive meant that he had a lot of energy and played really hard or “aggressively.” In addition the fact that the dog scared them is really based only on their perception of the dog as a “non” expert, which has little meaning unless the dog actually demonstrated behaviors that were clearly threatening. A dog that barks at people passing the property may scare them but barking is not considered an aggressive behavior on its own. Even a statement from a witness that the dog barks aggressively can be challenged unless it is dissected and proved to reveal truly aggressive behavior or just the witnesses’ personal observations and reactions.

4: DISCOVERY DOCUMENTS
Basically, the laundry list of important discovery documents needed in a dog bite case or pet-related injury are well known. As far as the dog is concerned, it is nearly always necessary to present veterinarian records, animal control records, police report, paramedic records if any, the names of any trainers and/or groomers the dog has had, names of independent witnesses who are familiar with the dog, including neighbors, friends, others who have visited the home, etc. Other related documents that may prove helpful are AKC registration certificates, breeding documents if the dog, was imported as a puppy or as a trained dog and diplomas from any training schools the defendant claims the dog has attended.

Receipt of a veterinarian’s records doesn’t insure that you have all the information contained in them. These days, many veterinary clinics respond to subpoenas for records with digitized or computer printouts. As most veterinarians still write initial reports by hand, it is important to obtain both the handwritten notes and the computerized printout if needed to help decipher the doctor’s handwriting. In more than a few cases, notes containing the words “reactive” or “tried to bite” were written in the top corner of some records but were not transferred to the computer version.

5: WOUND EVALUATION
If a plaintiff claims that a Rottweiler bit her arm and held it in its mouth for over two minutes while knocking her down and shaking his head, their wounds are “direct” physical evidence of the attack. An expert, court-qualified in wound evaluation, can give a strong opinions based on photos of the wounds as well as specific information that supports the plaintiff’s version. Victims of dog attacks are often not clear about every detail of the incident but their wounds, tell a complete story in a way that is hard to challenge. If there is too much disparity between the plaintiff’s version and their actual wounds it can lead to a serious credibility issue.

6: CONSULT AN EXPERT
It is vitally important to know as much about a case as possible, even before accepting it. Retaining an expert can be expensive, especially if your case goes all, the way through deposition and trial. However most, if not all experts offer an initial free consultation. The attorney can give a very general set of facts and pick the expert’s brain a bit. As no proprietary information is being exchanged, there is no risk to either party

Ron Berman

Ron Berman, C.F.C., D.A.B.F.E. is a canine and feline behavior expert specializing in the litigation of dog bites and related injuries. He can be reached at 310-376-0620. His website is dogbite-expert.com.

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About the Author: Ron Berman, C.F.C., D.A.B.F.E. is a canine and feline behavior expert specializing in the litigation of dog bites and related injuries. He can be reached at 310-376-0620. His website is dogbite-expert.com.

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