Defenses to a Dog Bite Injury Lawsuit

A dog owner may raise a number of defenses when facing a dog bite injury lawsuit.

Updated By , J.D.

The rules of dog owner liability for bites and other injuries vary from state to state, and so do the owner's options for avoiding legal responsibility when facing a dog bite-related civil lawsuit. In this article, we'll:

  • discuss a dog owner's possible tactics for disproving key elements of the plaintiff's case, and
  • explain common "affirmative defenses" to liability in a dog bite case.

"Affirmative Defenses" vs. Disproving the Plaintiff's Case

When it comes to the substance of a dog bite lawsuit, a defendant dog owner can usually "win" (avoid liability) in one of two ways:

  • by convincing the judge or jury that the person who is suing (the plaintiff) did not prove all necessary elements of his or her case, or
  • by providing a successful affirmative defense.

In any given personal injury lawsuit, including dog bite injury claims, the plaintiff is required to prove that the defendant is liable for the incident that led to the harm. The plaintiff must present evidence that convinces the judge or jury that it is "more likely than not" (i.e. better than 50/50) that the plaintiff's version of events is true. Exactly what the plaintiff will need to prove will depend on the dog owner liability rules in place in a given state. We'll get into those details below.

A successful affirmative defense, on the other hand, allows a defendant to win the case even if the plaintiff proved all required elements. Instead of disproving the plaintiff's case by arguing that the evidence is weak (or non-existent), the defendant presents other evidence that proves an "affirmative" defense. A common example is the statute of limitations: a plaintiff with an otherwise winning case will lose if the defendant proves that the plaintiff did not start the lawsuit on time.

Disproving the Plaintiff's Case in Dog Bite Lawsuits

The defendant's tactics for disproving the plaintiff's case will depend on the dog owner liability rules in place in the state. Most states follow either "strict liability" or "one-bite"/negligence rules.

In a state with a strict liability dog bite statute, disproving a plaintiff's case will probably be difficult. Although the statutes vary, many "strict liability" states have a rule along these lines:

If the plaintiff was somewhere he or she was legally allowed to be, and did nothing to provoke the dog, the dog owner is liable if the animal bit or otherwise attacked the plaintiff.

In some states, the animal must meet the definition of a "dangerous dog" in order for strict liability to apply. Other states have carved out still more requirements for when strict liability will come into play.

A defendant has few defenses in states that have a strict liability dog bite statute, other than arguing the plaintiff didn't have a legal right to be where he or she was (the plaintiff was trespassing, in other words), that the plaintiff provoked the dog, or otherwise claiming that some key element for application of strict liability hasn't been met.

In states that don't follow "strict liability" for dog owners (or when the requirements for strict liability aren't met in a strict liability state), the dog owner might have an easier time. In "one bite" or negligence cases, the defendant's first option for winning often lies in convincing the judge or jury that the plaintiff's evidence is too weak to satisfy the "more likely than not" standard. If the defendant successfully does that, the plaintiff loses the case. A common example would be convincing the jury that the plaintiff's one witness didn't remember enough about the dog bite (who was where, whether the dog was provoked, etc.).

The defendant can also try to convince the judge that the defendant did not owe any legal duty of care to the plaintiff under the circumstances. One way to do this is to show that the defendant did not own or was not in control of the dog at the time of the incident. It is always up to a judge (not a jury) to determine if a duty is owed, and the facts of a case may create other unique opportunities to argue that the circumstances surrounding the bite did not involve the defendant's duty of due care.

Another way to disprove a plaintiff's negligence case is to convince the judge or jury that the defendant could not reasonably have known that the dog might bite someone. Before the advent of dog bite statutes, this was probably the most common way for a defendant to win a dog bite case. If a dog had never bitten someone before and showed no signs of being "that kind of dog," a defendant would not usually be held liable.

"Affirmative Defenses" In a Dog Bite Lawsuit

If the plaintiff was trespassing at the time of the bite, the owner will probably not be liable for the plaintiff's injuries. Learn more about homeowner liability when a dog bites a trespasser.

As touched on above, if the plaintiff in some way provoked the dog that eventually bit him or her, that might also provide an affirmative defense. Some dog bite statutes, however, do not allow a provocation defense. In states that do allow the defense—either by statute or through court decision "precedent"—it may be the plaintiff's responsibility to establish that he or she did not provoke the dog, either intentionally or unintentionally. The defendant can then either argue that the plaintiff failed to give convincing evidence of no provocation, or can give his or her own evidence that the plaintiff actually did provoke the dog.

A defendant may also be able to argue that the plaintiff contributed to the dog bite or "assumed the risk" of a dog bite. A classic example might be the delivery person who sees that a barking dog is off of his chain in a yard, but attempts to enter the yard anyway. Remember though, that these affirmative defenses will generally not be available in a state with a strict liability dog bite statute.

If you find yourself on either side of a dog bite claim—as a dog owner or as someone who suffered a bite or other injury—it may be time to discuss your situation with a personal injury lawyer.

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