IS THERE STILL A DOG BITE CASE IF THE DOG WAS PROVOKED?
Our lawyers represent many people each year who were bitten by a dog or injured by a dog. Minnesota law provides that if a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. One of the more common explanations the dog owner will give to the insurance company is that the person injured provoked the dog. This is a defense we hear from an insurance company several times every year.
The MN statute does not explicitly describe the meaning and availability of the defense of provocation under the statute. However, the courts have interpreted the statute to mean that a victim who voluntarily and unnecessarily provokes a dog in a manner than invites a dog attack is not entitled to recover. Knowledge of the danger is an element of the voluntariness necessary for the victim’s conduct to constitute provocation under the statute and bar recovery; consequently, provocation focuses on the victim’s conduct and requires both the direct knowledge of the danger and that the victim voluntarily exposed herself to that danger. It is not necessary that the plaintiff victim intend to provoke the dog; rather, provocation involves voluntary conduct that exposes the person to a risk of harm from the dog where the person had knowledge of the risk at the time of the incident. For example, petting a growling dog after being warned that it had just had puppies can be provocation. But inadvertently stepping on the dog’s tail does not constitute provocation. Petting a dog that is in pain is not provocation where there is no warning and the victim had petted the dog before and been assured it wouldn’t bite.
A lawyer in our office is working on a case now where a young child was visiting a friend’s house. The dog was locked in another room, but when the dog owner went outside, another child let the dog out of the locked room and it bit our young client in the face. The dog owner is claiming our client provoked the dog, even though the owner was outside at the time and there were no witnesses to the attack. We’ll see what the jury says about this one.