Personal Injury Attorney | Proving Negligence in Dog Bite Claim

Any experienced personal injury attorney understands how shocking and devastating a dog attack can be. Dog bites not only cause death and physical injuries but also emotional harm that may never be overcome. Personal injury attorneys who have handled dog bite cases have several methods available for proving liability, and one of the most important of these is by proving negligence.

Doctrine of Scienter

In most cases, a personal injury attorney will first attempt to demonstrate liability through the common-law doctrine of scienter. This is not always as easy as it seems because the test for scienter is completely subjective. In order to invoke the doctrine, three elements must be proven:

1. The defendant in the case is the legal owner of the dog.
2. The dog has a propensity to cause harm similar to what has been alleged.
3. The owner knew that the dog has this propensity to cause harm.

In most cases, if it can be shown that the dog owner knew his or her dog could be a danger to others, then the liability falls on the defendant.

Negligence in Dog Bite Cases

If the doctrine of scienter cannot be used to prove the defendant is liable, then personal injury attorneys will attempt to prove negligence. Unlike scienter, negligence relies on objective proof, which means the judge or the jury will take into consideration what an average, reasonable person should have known when the injury occurred. To show that a dog owner is negligent, three different but similar proofs have to be made:

1. The defendant is the owner of the dog.
2. The owner knew or reasonably should have known that the dog has a propensity to cause harm.
3. The owner failed to make reasonable attempts to prevent the dog from causing harm.

Other Factors in Proving Negligence

It is important to note that exceptions are allowed in dog bite cases in California. If the defendant can prove comparative negligence on the part of the plaintiff, the court may reduce the amount of any monetary award by the percentage of comparative negligence.

In addition, if the victim is trespassing or in the act of committing a crime at the time of the incident, then the defendant may not be liable.