Although California is a strict liability state, and, as a result, the majority of dog-bite cases and other pet-related cases are settled, a surprising number leave settlement hearings unresolved. Understanding the underlying facts and the need to secure vital evidence in these types of cases has never been as significant for plaintiffs and defense.
In nearly all the cases I have been involved in, either important evidence that could easily sway a jury had been overlooked by uninformed investigators or important questions had not been asked when deposition testimony was taken. As insurance carriers and the attorneys who represent them look for ways to lower settlement costs or actually win pet-related cases outright, issues involving plaintiff liability, owner negligence and the behavioral history of the dog expand the range of outcomes in cases that were approached as clear cut in the past.
More sophisticated methods of evaluation and investigation and changing attitudes about dog ownership and the value of pets in general, have an impact on the reactions of juries when these cases come before them. As litigation of these matters increases, all concerned parties need a better understanding of how to deal with dog-bite and pet-related cases.
Evaluate the dog as soon as possible. In every case I have been involved with one either a dog bite or an injury caused by contact with a dog, the dog was not available for an evaluation when I was designated as an expert witness. In fact, I have been contacted as much as two years after the incident. It is critical to evaluate the dog as soon after the incident as possible because an expert opinion based only on hearsay or deposition testimony is not nearly as powerful as one that is based on actually seeing and testing the dog in similar circumstances. This is equally important for both the plaintiff and the defense.
Besides a behavioral history and a thorough evaluation, a photo or a video of the dog going through specially designed tests could easily prove or disprove the concept of this being an "aggressive and dangerous" dog. The lawyer should try to get permission to evaluate the dog before it is either euthanized or given away to some stranger, never to be seen again.
Talk to all the neighbors. Neighbors always know a lot about the typical behavior of the dogs on their block. They may pet them as they pass by, or they may avoid them because they see them as potentially dangerous. Neighbors also know if the dog ever gets out of the yard or if the owner allows the dog to wander the streets. And they are good sources of information about prior incidents.
Interview the dog's veterinarian. The veterinarian is a good source of information on how the dog acted prior to the incident. Medical records can sometimes show that the dog has had problems with aggressive or fearful behavior or that it was physically difficult or impossible for the dog to have done what is being claimed. For example, in a case in which a dog is supposed to have jumped a fence and chased someone, a visit to the vet might produce information that the dog had hip displasia and could not jump without extreme pain.
Check with animal control. This is also a good source of information about whether or not the dog was a problem in the neighborhood and if the dog was ever picked up by officers previously.
Investigate the scene. In a recent case where the plaintiff claimed that a dog jumped a fence and chased him into the street, where he was subsequently hit by a car, I found evidence that tended to disprove his claim by carefully examine the yard the dog was kept in.
In prior testimony the plaintiff had said that the dog jumped the fence and landed on the concrete. When I measured the fence and the distance the dog would have had to travel in the air in order to land on the concrete, it became clear that the dog would have needed wings to have performed such an amazing feat. In addition, a number of holes dug by the dog in different areas of the yard showed that the dog had indeed tried to leave in the past, but had tried to dig its way out, not jump. Since dogs are creatures of habit, it would be highly improbable that a dog that had done so much digging would suddenly change its modus operandi and jump the same fence.
Other signs, like tracks along a fence facing the street, may show that the dog paced or raced back and forth barking and growling at people or dogs that passed by. Bite marks on the top or sides of a wooden fence suggest the dog released its aggression on the fence rather than elsewhere.
Determine whether or not the owner was negligent. Proving in court that the owner of the dog in question was not a responsible owner can help persuade a jury that the dog was dangerous. Checking whether or not the dog was licensed each year, had all of its shots, was regularly checked by a veterinarian, wore a collar at all times and was trained can all help prove whether or not a dog owner has been responsible.
If the dog was trained, find out if a professional trainer was involved and interview the trainer about the dog's behavior. A trainer can also give a good sense of how the owner treated the dog. Was abusive force used in the training? Was the dog hit? Was the dog allowed to get away with murder? What was its temperament? How did it act under stress?
Get the most out of the pet-behavior expert, if you designate one to support the case. Bring the expert into the fold as soon as possible. Besides educating yourself about aggressive behavior in dogs and reading any books or articles written by the opposing expert, let your own expert help you make sure that all necessary questions about the dog's behavior are asked. Building a solid foundation of testimony to support your case begins early, and it is important to understand how aggressive behavior works so that your questions can bring out any relevant information.
Be aware of new attitudes concerning dogs and pets in general. Dogs are not just dogs to many people; they are children, grand-children, best friends and significant others as well as protectors. Never before have dogs and our relationships with them become the subject of so many movies, televisions shows and articles. As a result of this shift in focus, jurors' attitudes have changed as well.
This Article was Provided by the Technical Assistance Bureau.