7 Factors to Consider in a Child Dog Bite Case...7 Factors to Consider in a Child Dog Bite Case 4 3...

26 December 2016 | | Trial

The majority of seriously injured dog bite victims in the United States are children. Representing them presents certain challenges, from countering accusations of provocation to ensuring witness testimony is reliable. These issues can make or break your case.

By | | Ke n n e t h M . P h i l l i p s

7 Factors to Consider in a Child Dog Bite Case

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Reprinted from Trial® (December 2016) American Association for Justice®, Formerly Association of Trial Lawyers of America (ATLA®) www.justice.org/publications

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Children are the most common victims of serious dog bite injuries in the United States, making up one-third of all emer-gency room (ER) visits for dog bites.1

The cost of medical treatment ranges from several hundred dollars for an ER visit to an average of $18,200 for hospi-talization.2 While one would expect dog owners and their liability insurers to pay the greater portion of these medical bills, government sources pay them almost half the time.3 In fact, of the 885,000 Americans who are treated for dog bite injuries annually,4 only about 16,000—a mere 2 percent—are compensated by liability insurance companies.5

But you can shift more of the health care burden to dog owners and liability insurers. Here are strategies for tackling seven of the most challenging issues in a child dog bite case.

Strict Liability and Bad ConductTwo-thirds of states have statutes impos-ing strict liability for dog bites to people.6

While this may be helpful at the negoti-ating table, it has mixed results at trial: Strict liability occasionally results in jurors declining to award full damages—even if the defendant takes full responsi-bility—because the verdict is independent of the defendant’s negligence or intent.

To overcome this, look for bad con-duct showing that the defendant was irresponsible, negligent, or reckless: for example, evidence that the defendant violated an animal control ordinance like a leash law.7 In a so-called “one bite state,” the statutory violation may be your client’s only basis for compensa-tion because it constitutes evidence of negligence or—depending on the juris-diction—a presumption of negligence.8

Subsequent TortsAnother strategy is to plead a subsequent tort claim, if the circumstances fit. For example, I once represented a young

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boy attacked by his neighbors’ off-leash dog. The child had to pass his neigh-bors’ house to get to school. After the attack, the dog owners retaliated for the anticipated lawsuit by letting their dog loose in the street during the times of day the child was likely to pass by their house, terrorizing the boy. My complaint included counts for the dog attack, as well as willful infliction of emotional distress with a demand for punitive damages. We settled quickly.

Suits Against Friends and FamilyIn the majority of cases, the owners of the dog that attacked the child are friends, family members, or neighbors.9

This can make jurors uncomfortable—people generally believe that families, friends, and neighbors shouldn’t sue each other.

Approached delicately, however,

these defendants often help the case rather than hurt it. Many times, they willingly accept blame for the acci-dent because they want the victim to be compensated. They might cry when describing the child’s agony and painful recovery. At their depositions, they fre-quently disclose important information about who saw the accident and what the witnesses will testify to.

In these cases, argue that the relation-ship created a greater moral obligation for the defendant to protect the child. Similarly, argue that the breach of this duty caused the child to sustain deep emotional harm.

Children as WitnessesWhen a dog bites a child, often the only witnesses are other children. If pos-sible, videotape the young witnesses giving a statement within days of the


Ron Berman

All dog bites are serious, but there is a difference between offensive and defensive aggression that appears in both the dynamics of an attack and the type, depth, location, and number of bite wounds. If the plaintiff was the only witness or the dog has been euthanized, bite wounds may be your only evidence.

Defensive aggression. Someone who provokes a dog—for example, by stepping on the dog’s tail or putting his or her face close to the dog’s face—may receive a single defensive, “inhibited” bite. The dog controls the bite’s severity because it simply wants to remove a threat. One quick bite usually creates enough distance between the dog and the threat, and the dog displays no further aggression.

Offensive attacks. In these instances, the victim’s actions before the attack were unlikely to cause a dog bite and, as such, these are unprovoked attacks. If the bite involves one of the three following factors, it is considered “serious” from a behavioral standpoint: multiple wounds on different areas of the victim’s body; “shaking,” where the dog bites fully with its upper and lower canines, resulting in opposing wound patterns and bruising around the wound; and the dog’s unwillingness to end the attack on its own. Attacks involving all three factors can be the most serious as they indicate an extremely violent attack—but usually, only one or two factors are present.

History of aggression. To thoroughly investigate a past history of aggression, obtain documents for all the dogs involved, including veterinary, animal control, grooming, and kenneling records, and any witness and �rst responder reports. Interviewing neighbors or anyone who had contact with the dog before the attack also can produce vital evidence about the dog’s history and the owner’s or handler’s knowledge.

Not all forms of past aggression will be helpful to your case. Canine aggression has many forms: dominance, territorial, protective, and maternal aggression, among others. A dog’s past aggression may not support your case unless the type of aggression directly relates to the attack. For example, evidence that the defendant’s dog has attacked other dogs or animals is not useful unless the attack on your client involved another dog.

Aggression also may be situational. If the dog once bit someone who was trying to take the dog’s food away (food aggression), that evidence will only have weight if your client was bitten in the presence of food.

When bite wounds are the only physical evidence in a dog bite case, it is critical to properly evaluate and analyze them. They nearly always offer a great deal of evidence about what hap-pened, as well as the type and level of the dog’s aggression.

Ron Berman is a canine behavioral consultant and trainer specializing in dog bites and pet-related injuries in Manhattan Beach, Calif. He can be reached at [email protected].

WOUND EVALUATION AND ANALYSIS

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attack. This record—in the children’s own words—is critical. Child witnesses often forget the details of an event, or the defense may try to manipulate the child’s testimony at trial.

In each video statement, meticulously establish the basics—that the child saw the attack, understands the difference between truths and falsehoods, is tell-ing the truth, and was not told what to say. Also get the details of what a child witness did not see. Before testifying or giving a statement to the defense, each child should view his or her own video to ensure accuracy—children often repress painful memories.

Be sensitive when taking a child’s testimony at deposition and trial. If the child is a defense witness, two ques-tions you should always ask during his or her deposition are, “Tell me what your parents told you to say to me today,” fol-lowed by, “Do you remember it that way or are you saying it just because your parents told you to?” The responses often reveal that the child was manipu-lated or coached.

And don’t forget the obvious. In one dog bite case, the defense relied largely on a six-year-old girl who sup-posedly would testify that my client, Brandon, provoked the dog. I began the girl’s deposition by establishing that

she knew who Brandon was. Then I asked, “Do you remember that your dog bit Brandon?” With a big smile on her face, she answered, “No.” I then asked a few follow-up questions to confirm that she had no recollection about what happened—and quickly ended the depo-sition. No longer able to prove provoca-tion, the defense eventually offered a very substantial settlement.

ProvocationOne of the cleanest fact patterns is the sneak attack: The dog bursts through a gate and, for no discernible reason, attacks a child who was not trespass-ing.10 This scenario eliminates the defense of provocation, which can be the basis for comparative or contribu-tory negligence—or, if the child is old enough, completely defeat your case.11

But when your young client has a history of being around the dog or was playing with the dog right before the attack, jurors might think the child pro-voked the animal. In these instances, find out whether the dog had a preexisting condition that increased the likelihood of an attack—for example, if the dog was injured, unhealthy, not socialized, or had a history of biting.12

Jurors may be biased against victims when other people provoked the dog. For

example, jurors may sympathize with the dog owner if neighborhood children teased and treated the dog cruelly, even if your client was not involved. Bring a motion in limine to counter the prejudi-cial effect of such evidence.

If the child was bitten while protect-ing his or her own dog from an attack-ing dog, defense attorneys often argue assumption of the risk and provocation. Counter this by arguing that because of the bond between them, your client could not stand idly by while another dog tried to harm his or her pet. If the victim was very young, add that he or she did not understand how dangerous it could be to intervene.

Parental SupervisionThe parents of a bitten child occasion-ally face a counterclaim for inadequate supervision. In my experience, this defense tactic has never worked. To overcome it, show that the parents exer-cised the same degree of supervision that other parents would have.

Nevertheless, it is critical to establish whether the parents knew there was an increased risk of a dog bite injury. At the initial interview, ask the child’s parents whether the dog bit anyone before—and, if so, whether they knew this informa-tion before or after the attack. If the

In the majority of cases, the owners of the dog that attacked the child are friends, family members, or neighbors.



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incident happened on private prop-erty, take photographs to establish that no warning signs, such as “Beware of Dog,” were posted. Finally, ask if any-one verbally warned the child or his or her parents that the dog was “bad with kids.”

Also consider whether the parents should have known that the particu-lar situation would possibly result in an attack. For example, if the dog bite occurred at a pool party—where children are splashing water, running around, and shouting—a jury or insur-ance adjuster might blame the parents for not pulling their child out of the fray.

Third-Party CaretakersIf a child is injured by a third party’s dog while in the care of that person, assert a negligence claim based on §44 of The Restatement (Third) of Torts: “An actor who, despite no duty to do so, takes charge of another who reasonably appears to be . . . helpless or unable to protect himself or herself has a duty to exercise reasonable care while the other is within the actor’s charge.”13 A duty to protect children under one’s care is established in the case law of most states, whether or not it has adopted the restatement.

Argue that the defendant was dou-bly at fault—both as the dog owner and the person charged with caring for the child. As a caretaker, this creates a special relationship and a heightened duty of care. Assert that when an adult hosts a playdate or sleepover but fails to pay attention, he or she is liable for any resulting injuries to the child.

When representing children with dog bite injuries, it’s important to recognize the intricacies of what can harm or help your case. Knowing how to overcome these obstacles will help your vulnerable clients and hold dog owners and handlers responsible.

Kenneth M. Phillips is an attorney in Beverly Hills, Calif. He can be reached at ken@dogbite law.com. Copyright © 2016 Kenneth M. Phillips.

Notes1. Children are more likely than adults to

receive medical attention for dog bites and, among the very young, the majority of injuries are to the head, neck, and face. Ctrs. for Disease Control, Nonfatal Dog Bite-Related Injuries Treated in Hospital Emergency Departments—United States, 2001, 52 Morbidity & Mortality Wkly. Rep. 605, 606 (July 4, 2003), www.cdc.gov/mmwr/PDF/wk/mm5226.pdf; see also Laurel Holmquist & Anne Elixhauser, Emergency Department Visits and Inpatient Stays Involving Dog Bites, 2008, Agency for Healthcare Research & Quality Statistical Brief #101, at 2, 12 fig. 3 (Nov. 2010), www.hcup-us.ahrq.gov/reports/statbriefs/sb101.pdf.

2. See Holmquist & Elixhauser, supra note 1, at 2, 9 tbl. 2.

3. Stephen J. Strotmeyer et al., Dog Bite Injuries in Pennsylvania, 1995, at 1, 11–12 fig. 9 (Ctr. for Violence & Injury Control 1999), citeseerx.ist.psu.edu/viewdoc/download? doi=10.1.1.571.6351&rep=rep1&type=pdf.

4. Julie Gilchrist et al., Dog Bites: Still a Problem? 14 Injury Prevention 296 (2008), injuryprevention.bmj.com/ content/14/5/296.abstract (based on a nationally representative, cross-sectional survey conducted during 2001–2003).

5. Dog Bite Liability, Ins. Info. Inst. (May 2016), www.iii.org/issue-update/dogbite-liability.

6. See Kenneth M. Phillips, Statutory Strict Liability States, Dog Bite Law, dogbitelaw.com/3ua (listing the statutory strict liability states).

7. A leash law is a state statute or municipal or county ordinance that requires a dog, when off its owner’s property, to be under restraint by a competent person, usually holding one end of the dog’s leash but in some jurisdictions controlling the dog by voice. Always find out whether the leash was retractable—almost all leash laws prohibit a physical leash greater than six feet in length. See Kenneth M. Phillips, Negligence Per Se for Violating a Leash Law or Other Animal Control Law, Dog Bite Law, dogbitelaw.com/legal-rights-of-dog-bite-victims-in-usa/negligence-per-se-for- violating-a-leash-law-or-other-animal-control-law.

8. In the majority of states, the violation constitutes negligence per se. See, e.g., Brotemarkle v. Snyder, 221 P.2d 992 (Cal. Ct. App. 1950); Duffy v. Debhart, 157 A.2d 585 (Del. Super. Ct. 1960); Alex v. Armstrong, 385 S.W.2d 110 (Tenn. 1964). In a minority of states, it is only evidence of negligence. See, e.g., Moura v. Randall, 705 A.2d 334 (Md. Ct. Spec. App. 1998); Butler v. Frieden, 158 S.E.2d 121 (Va. 1967).

9. Statistics go as high as 88 percent. See Alan M. Beck & Barbara A. Jones, Unreported Dog Bites in Children, 100 Pub. Health Rep. 315, 317–18 (1985), www.ncbi.nlm.nih.gov/pmc/articles/PMC1424765/pdf/pubhealthrep00099-0065.pdf; John Kennedy Bini et al., Mortality, Mauling, and Maiming by Vicious Dogs, 253 Annals Surgery 791, 793 (Apr. 2011), www.researchgate.net/publication/51034290_ Mortality_Mauling_and_Maiming_by_Vicious_Dogs.

10. Trespass is a good defense when the case is built on statutory liability because the wording of these laws usually makes them inapplicable to trespassers. See, e.g., N.H. Rev. Stat. Ann. §466:19 (2016) (“Any person to whom . . . damage may be occasioned by a dog not owned or kept by such person shall be entitled to recover damages from the person who owns, keeps, or possesses the dog, unless the damage was occasioned to a person who was engaged in the commission of a trespass or other tort.”).

11. The provocation defense may be found in a state’s dog bite statute. See, e.g., Minn. Stat. Ann. §347.22 (West 2016) (“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.”). Case law establishes that the defense also might be based on conduct that is intentional or unintentional. See, e.g., VonBehren v. Bradley, 640 N.E.2d 664 (Ill. App. Ct. 1994) (intentional conduct); Brans v. Extrom, 701 N.W.2d 163 (Mich. Ct. App. 2005) (per curiam) (unintentional conduct).

12. John C. Wright, Canine Aggression Toward People: Bite Scenarios and Prevention, in 21 Veterinary Clinics of North America: Small Animal Practice 299, 299–303, 311–12 (Amy R. Marder & Victoria L. Voith eds. 1991), cla.mercer.edu/mu-cla/psychology/faculty/j_wright/upload/Canine- Aggression-Toward-People.pdf (listing these factors as the most common reasons dogs bite).

13. Restatement (Third) of Torts: Physical & Emotional Harm §44 (2012).


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