Overcoming the Primary Obstacles to Compensation in a Dog Bite Claim
Over the last ten years, the average dog bite injury settlement amount had doubled. Many dogs are bigger and more aggressive than they were ten years ago. As a result, animal attack victims usually sustain serious physical and emotional injuries. Usually, these injuries are permanent, at least to an extent. Ongoing expensive medical treatment, along with the more serious nature of emotional injuries, drives up a claim’s settlement value.
To determine the settlement value, which is like the asking price, a Carlsbad dog bite lawyer usually considers the amount of damages in the case, as discussed above, as well as any potential insurance company defenses, as discussed below. A strong defense increases the risk of a trial and lowers the settlement value. So, to obtain maximum compensation, an attorney must anticipate these defenses and be ready to refute them.
Provocation
The effect of this defense varies, based on the victim/plaintiff’s approach. Usually, a Carlsbad personal injury lawyer brings a strict liability case or a scienter (knowledge) negligence case.
Under California law, dog owners could be strictly liable for animal attack injuries, even if they didn’t know the animal was dangerous. Provocation, a word with a specific meaning in this context, is an absolute defense to strict liability claims.
Provocation is a partial defense to scienter and other negligence claims. If the victim provoked the dog, the jury must apportion responsibility between the two parties. Then, the judge must reduce the victim’s compensation accordingly (e.g. if Ed was 50 percent responsible for a dog bite, the court will reduce his compensation by 50 percent).
Most people believe provocation is a verbal act, like teasing or maybe bullying. In the everyday world, that idea is basically true.
But. in a dog bite case, provocation is a deliberate act. Sarah might accidentally provoke her sister, but she cannot accidentally provoke a dog. Furthermore, provoking a dog is an extreme physical act that’s basically akin to torturing a dog. The violence must be so bad that the dog had to react violently to defend itself.
Significantly, provocation is an affirmative defense. So, the insurance company, not the victim/plaintiff, has the burden of proof on this point. Insurance company lawyers must prove the victim provoked the dog and the provocation was extreme enough to torpedo the damages claim.
Assumption of the Risk
This defense is only available in scienter or other negligence cases, like ordinary negligence (a lack of care) or negligence per se (a violation of a leash law or other safety law).
Like provocation, assumption of the risk is a two-part defense. First, the insurance company must establish the legal elements of this defense, which are:
- Voluntary assumption of
- A known risk.
Assume Leslie puts up a Beware of Dog sign on the outside of her fence. Tim, who is eight years old, comes over to play with Leslie’s son, and her dog bites Tim. Most likely, Tim didn’t see the sign. Even if he saw the sign, he probably couldn’t understand what the sign meant. “Beware” is not a word most eight-year-olds are familiar with.
In the unlikely event insurance company lawyers establish these elements, the jury must divide responsibility and the judge must reduce compensation, as outlined above.
Work With a Hard-Hitting San Diego County Lawyer
Injury victims are entitled to substantial compensation. For a free consultation with an experienced personal injury lawyer in Carlsbad, contact the Pursley Law Firm. Virtual, home, and hospital visits are available.
Source:
iii.org/article/spotlight-on-dog-bite-liability
