Actual Proof of Comparative Negligence: PA Canine Injury

We have written about how a dog bite victim’s own careless conduct (or comparative negligence) can jeopardize the value of her claim for injuries.  Here, we discuss the proof needed to show the Plaintiff had been “comparatively negligent” when attacked by a canine. In other words, what type of mistake on the part of the victim can reduce the amount of her recovery?   

Burden of Proof 

The plaintiff has the burden to prove liability on the part of the Defendant pet owner.  However, if the Defendant blames the victim (for conduct that caused her own injuries), the burden of proof shifts to the Defendant.  42 Pa. C.S.A. §7102.    

This means, the Defendant must present in court actual evidence — not just speculation — to show (a) what the Plaintiff did wrong (allegedly) and (b) how Plaintiff’s error caused or contributed to her injuries.  Then, at trial, if the Defendant presents such evidence, the judge may instruct the jury about “comparative negligence” and ask the jury to decide the Plaintiff’s relative percentage of fault, to reduce her claim by that much.   

 

A Recent Example  

In Coffin v. Carbon County Animal Shelter, No. 1516 C.D. 2023 (Pa. Cmwlth. July 22, 2025), the Plaintiff suffered dog bite injuries from an attack at an animal shelter.  Plaintiff sued the shelter, claiming serious leg injuries and two broken ankles. However, the shelter asserted that the Plaintiff had been “comparatively negligent,” meaning, the Plaintiff’s own carelessness caused her injuries in whole or in part.     

Allegedly, Plaintiff had failed to distance herself from a leashed dog that had merely jumped towards the Plaintiff as it approached, allowing the dog to attack Plaintiff from behind after it had passed. With this, the defendant asked the judge to instruct the jury about Plaintiff’s alleged comparative negligence.  The court agreed.  

While the jury initially awarded $40,000, it also assessed 50% comparative negligence against the Plaintiff. With that, the verdict was reduced by 50% to $20,000.      

 

Appeal to the Commonwealth Court

Plaintiff appealed to the Commonwealth Court, claiming that there was not evidence of comparative negligence.  The Commonwealth Court found:    

On September 17, 2019, [the Shelter’s agent] arrived at the animal shelter at 11:45 a.m. As she changed her shoes in her car, a party approached, walking a dog on a leash up the path toward her. When the dog jumped, she knocked it down with her hand and told [the Shelter’s agent] to take the dog away. While she was walking to the animal shelter from her car, the dog attacked her from behind, biting her leg and causing her to fall to the ground.     

The appellate court ultimately decided that a brief, non-vicious encounter (lacking growling or snapping) was insufficient to put the Plaintiff on notice of the dog’s vicious propensities.  As such, she had no obligation to keep any particular distance from the canine.      

Ultimately, the court found no evidence to support the theory that the Plaintiff was negligent in allowing the dog to approach her a second time. Thus, the superior court sent the case back down for the court to award the Plaintiff $40,000 without reduction.      

 

Conclusion 

Any defendant can blame the victim for her injuries.  However, every case requires a review of whether actual evidence supports the defendant’s accusations. For example, the courts will look for:   

• • actual evidence of danger from the victim’s own conduct.  I.e., did she disregard potential harm that was reasonably foreseeable to her, at the time of the injury, not in the present time with the benefit of hindsight?  
  • even the Plaintiff had made a mistake, did it cause or contribute to her injuries?  
  • whether the Defendant’s accusations of the Plaintiff are supported by facts of record beyond mere conjecture?