What Counts As Provoking a Dog?
Provocation, which is usually a partial defense in Texas dog bite cases, is very narrowly defined. Basically, and in sharp contrast to the everyday definition, legal provocation in this context is an intentional and physical act. Teasing, even aggressive or reckless teasing, doesn’t count as provoking a dog. Instead, in most cases, torturing an animal is a good synonym for teasing an animal.
Many insurance companies plan their entire defensive strategy around the provocation doctrine. If a Sugar Land personal injury attorney successfully knocks this lynchpin loose, the insurance company is forced to come to the negotiating table and pay maximum compensation for your serious injuries. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Basic Elements
The exact legal definition of provocation is hard to pin down. Usually, courts consider the question on a case-by-case basis. Justice Potter Stewart’s comment about obscenity (“I can’t define it, but I know it when I see it”) also applies to the provocation defense.
Here’s what we know in a general sense. Most courts agree that any actions that cause fear or pain from the dog’s perspective are sufficient provocation. We mentioned two of the most important elements of this defense, intentional and physical, above.
Fast movements, loud noises, and other such things cannot legally provoke a dog to attack. In most cases, children under seven cannot form the proper intent in their minds, so provocation is unavailable as a matter of law. According to various courts, the following physical acts are not provocative:
- Quickly walking toward the dog,
- Unexpectedly turning and facing the animal,
- Chasing a dog with a fence post, and
- Sticking one’s hands through a fence.
Furthermore, words are never provocative. Sticks and stones may break my bones, but names will never hurt me, at least not physically. Regarding animal attacks, physical wounds are all that count.
Effects of the Defense
Depending on the evidence in the case, and a few other factors, a Missouri City personal injury lawyer typically files a scienter (knowledge) negligence claim in these cases.
Essentially, owners are liable for the aforementioned damages if they knew the animal might be vicious and failed to properly control it. Evidence on this point includes pre-bite behavior, such as aggressive lunging and loud barking.
Other possible legal theories include ordinary negligence (a lack of care) negligence per se (a violation of a safety law), and a failure to stop an attack in progress.
Provocation is usually a partial defense in negligence cases. Jurors must divide responsibility based on the evidence, weighing the owner’s failure to control the dog or other negligence against the victim’s provoking behavior.
Texas is a modified comparative fault state with a 51 percent threshold. Tortfeasors (negligent actors) are liable for a proportionate share of damages if the victim was no more than 49 percent responsible for the injury.
Comparative fault is a two-part defense. First, an insurance company lawyer must convince a judge the victim’s provocation substantially contributed to the injury. Quick-tempered animals with a history of violence often attack unprovoked. Second, the jury must divide responsibility, as outlined above.
Count on a Hard-Working Harris County Lawyer
Injury victims are entitled to significant compensation. For a free consultation with an experienced personal injury lawyer in Missouri City, contact the Henrietta Ezeoke Law Firm. We do not charge upfront legal fees in these matters.
