What if You, the Person Bitten by a Dog, Were Partially At Fault? 

Each Pittsburgh dog bite lawyer in our firm gets asked this question: what if you're bitten by a dog but you were partially negligent for causing the attack? 

Pennsylvania's Comparative Negligence Act 

Pennsylvania's Comparative Negligence Act is lenient on injured parties accused of being negligent, themselves. PA has enacted the Comparative Negligence Act which governs personal injury cases in PA.  This allows the injured party to recover money damages for another's negligence, even if the injured party was also negligent. Pennsylvania appellate courts expressly apply "comparative negligence" concepts in dog bite cases.  Miller v. Hurst, 448 A.2d 614, 302 Pa. Superior Ct. 235, 302 Pa. Super. 235 (1982).

However, the court will reduce the recovery in proportion to the injured party's negligence.  So let's say, for example, an Amazon driver gets bitten in part because he ignored a beware of dog sign. He sues the dog owner for negligence. The dog owner defends the suit, claiming the delivery driver was comparatively negligent. A jury finds that: 

• the injury is worth $100,000, 
• the dog owner was 75% at fault, and 
• the amazon driver was 25% at fault for ignoring the sign.  

The trial court judge will then mold the verdict based on the percentages of liability, awarding the injured party $75,000, not $100,000.  However, if the injured party's negligence exceeds 50%, then he recovers nothing.  So, in the above example, if the attack victim was 51% at fault, he gets nothing.  

However, it's the defendant's burden to prove the Plaintiff was comparatively negligent, as with any affirmative defense, such as the statute of limitation.(click here for more).  

 

More Good News - No Contributory Negligence for Dog Bites in PA

Contributory negligence is different from comparative negligence. With contributory negligence, if you're 1% at fault for your own injuries, you recover nothing. Some states, unlike PA, apply a "contributory negligence" standard to dog bite cases. In PA, we us a comparative negligence standard (not contributory negligence), unless, for example, the matter relates to legal malpractice (which involves compensation for monetary loss only), not personal injury cases.  

 

The Bad News - The Provocation Issue

Comparative negligence -- which must be proven by the Defendant -- is one thing, but provocation is a separate animal (pun intended). A Plaintiff 1% responsible for provoking the dog is barred from recovering anything. 

So what, then, is provocation? Provocation occurs when a person does something specific and with intent to entice the canine into being dangerous.  This is therefore different from ignoring a "beware of dog" sign, for example. 

In Pennsylvania, the Plaintiff -- not the defendant -- must prove the absence of provocation.  Thus, you will see in our dog bite lawsuits: "without provocation, Defendants' vicious canine attacked the Plaintiff..." This is because we -- the injured party and her lawyers -- have the burden to plead and prove the absence of provocation.  But it would seem both unfair and possibly even impossible for the injured party to "prove a negative." 

Fortunately, it's not.  

 

Ease of Proving a Lack of Provocation 

Provocation is unique because it requires proof of some act by the Plaintiff to antagonize the dog.  Therefore, provocation rarely applies in dog bite cases, because the victim is typically bit when simply minding her own business. Perhaps she had been merely walking down the street, or socializing with neighbors, when bitten.  Even if you ignore a "beware of dog" sign, you're not necessarily "provoking" the dog.  

On the other hand, with comparative negligence, it is relatively easy to say that the Plaintiff had also been "negligent" herself, for going anywhere near a dog known to be dangerous. After all, every dog is potentially dangerous, etc. That said, it's the Defendant's burden to plead and prove exactly how Plaintiff was negligent herself for, say, simply walking down a street where a dangerous dog had been known to live.  

 

Comparative Negligence Relates to Negligence, Not Strict Liability 

The other bit of "bad news" for dog bite victims in PA is this: if PA had been a strict liability state/commonwealth -- like New Jersey (which it is not) -- then comparative negligence would never apply as a defense. For example, in New Jersey, the party injured by a dog need not prove negligence to get compensated.  All bites are actionable, regardless whether anyone had been "negligent," when strict liability applies. PA employs a negligence standard for dog bite cases, which means that comparative negligence is a defense to any dog bite case PA.