Provocation: A Good Defense to a Dog Bite Claim?

As any  Pittsburgh lawyer handling dog bite cases will tell you, the defense of "provocation" can amount to an excellent defense to a dog bite claim in Western PA and in most states. In fact, even some states applying a "strict liability" standard for a canine attack (such as Michigan and Montana) allow the defense of "provocation." Pennsylvania does not have strict liability for dog bites. As such, in PA, the injury party must prove violation of our Dog Bite Law (often requiring proof of negligence) on the part of the person harboring the dog, except in certain limited circumstances, such as: 

• • Serious and life threatening injuries, or 
  • Instances where the dog is running at large or not under reasonable control. 

Still, in each of the above scenarios in Pennsylvania, provocation is a good defense. 

So what, then, is "provocation"? 

Provocation of a Dog Bite in Pennsylvania

In Skotnicki v. INS. DEPT., 146 A.3d 271 (Pa. Commw. Ct. 2016), Pennsylvania's Commonwealth Court defined dog "provocation" as follows: 

"Provoke" is not defined in the context of this case. Thus, we look to dictionary definitions to ascertain the term's plain and ordinary meaning. According to Merriam-Webster's Collegiate Dictionary (11th ed. 2004), "provoke" means "to arouse to a feeling or action ... to incite to anger ... to call forth (as a feeling or action): EVOKE ... to stir up purposely ... to provide the needed stimulus for[.]" Id. at 1002. Black's Law Dictionary (9th ed. 2009) defines "provocation" as "the act of inciting another to do something.... Something (such as words or actions) that affects a person's reason and self-control[.]" Id. at 1346 (emphasis omitted).

Must the Provocation be Purposeful?

Our research has not revealed any case where a Pennsylvania court required a finding of intent or purposeful "provocation" of the attacking dog. To the contrary, in both Skotnicki (above) and AEGIS SEC. INS (below) neither PA appellate court evaluated at the subjective intent of the person bitten by the dog, as alleged to have "provoked" the dog. In fact, subjectively ignoring a "beware of dog" sign is not, by itself, proof of provocation. AEGIS SEC. INS. v. Pennsylvania Ins. Dept., 798 A.2d 330 (Pa. Commw. Ct. 2002). 

Moreover, a court in Illinois found that an unintentional act can constitute "provocation": 

Provocation is defined as an act or process of provoking, stimulation or incitement. (Webster's Third New International Dictionary 1827 (1961).) Thus it would appear that an unintentional act can constitute provocation within the plain meaning of the statute. See Nelson v. Lewis, 344 N.E.2d 268, 36 Ill. App. 3d 130 (App. Ct. 1976).

While PA judges are not bound by the decision of an Illinois state court opinion, a PA judge may expressly rely on the reasoning in Nelson, above.  

 

What Really Matters to Prove "Provocation" in PA?

In Pennsylvania, the question of "provocation" is ultimately one for the jury or judge (the latter, if a jury trial is waived).  As long as "substantial evidence" exists to support a finding of "provocation," an appellate court will not overturn the lower court's finding that a dog was "provoked" into attacking. 

 

What Facts Support a Finding of "Provocation" in PA?

Any dog bite lawyer will tell you, every case turns on its facts. In AEGIS SEC. INS. v. Pennsylvania Ins. Dept., 798 A.2d 330 (Pa. Commw. Ct. 2002), an appellate court looked at whether enough existed to support the lower court's finding of provocation. In AEGIS SEC. INS, the injured part was a state trooper. 

Here's where it gets a little weird.  

Instead of using the front door of the dog owner's property -- as the trooper had done previously -- he crossed a creek and climbed two embankments to access the land. Plus, the trooper -- who had petted the dog on previous visits -- tried on this occasion to "shoo" the dog away, using a hard leather portfolio. The dog reacted by "nipping at [state trooper], tearing his pants and inflicting a superficial wound on his thigh." The lower court found there existed evidence to prove "provocation."

The appellate court agreed.  

Burden To Prove the Defense of Provocation

Technically, provocation is not a "defense," meaning, it's not something the Defendant must assert or it's waived. Rather, the injured plaintiff -- attempting to prove liability for the defendant's dangerous dog -- must prove the attack occurred "without provocation." In Commonwealth v. Baldwin, 767 A.2d 644 (Pa.Cmwlth.2001), the Commonwealth Court opined: 

Section 502-A of the Dog Law sets forth three elements that must be proven in order to establish that an owner or keeper is guilty of the offense of harboring a dangerous dog. First, it must be established that the defendant is the owner or keeper of the dog, and second, that the dog has committed one of four enumerated acts, one of which is attacking a human being without provocation. ...  The other element that needs to be proven is that the dog has either or both a history of attacking human beings and/or domestic animals without being provoked and/or a propensity to attack human beings without provocation, which may be proven by a single incident.

Thus, the party seeking to recover money for his injuries must prove a negative: namely, the attack occurred "without provocation," unlike a defense that the Plaintiff had been comparatively negligent. However, this is easy to do, in most cases, since attacks typically involve victims minding their own business. Usually, the party attacked (adult or child) had done nothing whatsoever to engage the canine, much less "provoke" it.  Thus, provocation is rarely an issue in animal attack cases.  

That said, technically, provocation is unlike the usual "affirmative defenses," such as "assumption of the risk." There, the burden of proof shifts to the defense, to prove the bitten Plaintiff had "assumed the risk" of an attack, as in "beware of dog" sign cases.  

 

Knee Jerk Defenses to Dog Bite Claims

The dog owner or person harboring it often fears that their insurance will go up if they report the claim. Or, they fear the claim will "break the bank" and exceed their insurance, facing the obligation to pay for disfigurement (scars), medical bills, pain and suffering, emotional distress and lost wages. As such, our Pittsburgh lawyers often hear dog owners render "knee jerk" defenses, such as "provocation," or it was just a "nip," etc. That said, talk to a lawyer before treating as truth anything the dog owner says to attempt to avoid liability.  

 

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