Both Massachusetts and New Hampshire are strict liability states, meaning that a dog owner is always responsible for any harm their animal causes in an attack regardless of the circumstances or if the dog has never bitten before.
Owners have little recourse when it comes to defending themselves against a dog bite lawsuit, with the exception of one defense – the argument that you provoked their dog to attack. Here’s what to know and when to get legal help from a qualified dog bite lawyer.
Establishing Provocation In Dog Bite Cases
In order for the dog’s behavior to have been considered justified in an attack, the owner must show that the victim provoked the animal. To constitute “provocation,” the act must go beyond just startling the dog or accidentally encroaching on its territory.
For example, if a toddler sticks their hand through a homeowner’s fence and their dog bites the child’s fingers, this likely wouldn’t meet the legal criteria for provocation. Not only was the child unaware of the danger, they had no intent to aggravate or provoke the dog to react.
To be considered provocation, one or more of the following must occur:
- The dog or its offspring was physically threatened or abused
- The person had physically threatened or abused the dog or its offspring in the past
- The dog was in pain or was injured at the time of the attack
- The dog was acting to protect its property, owner, or offspring from harm
An example of this is if someone breaks into your property and is attacked by your dog during their attempt to rob your home or commit another crime. Or, say an older child passes by your dog on their way to school each day and pokes the animal with sticks through the fence or throws rocks at it.
If the dog bites the child, a court is more likely to rule in favor of the dog’s owner and dismiss the case than if the child was just passing when they were attacked.
The Burden Of Proof
In a civil case, the burden of proof generally lies with the plaintiff, who must show that the defendant either knowingly or negligently caused harm that resulted in actual damages.
This means that you’ll have to prove that you were bitten by the owner’s dog and that you incurred losses as a direct consequence of the attack. You can do this with photographs, witness statements, medical records, and other evidence that establishes key facts about the incident.
If the defendant alleges that their dog bit you because it was provoked, they must bring proof that you engaged in threatening or abusive behavior toward the dog before you were attacked or that you posed an immediate threat of harm to the dog’s domicile or members of their pack.
To do this, they may be able to show security video of you provoking the dog, witness statements from people who saw you engage in aggressive behavior with the dog, and vet records showing that the dog was injured at the time of the attack.
Proportion Matters
Even if the defendant is able to successfully establish that you provoked the dog to bite you, the injuries you receive cannot be disproportionate to the injuries caused to the dog.
For example, if you threw a rock at the dog and its attack caused you to become disfigured for the rest of your life, it’s unlikely that a judge would rule that the attack was justified or provoked.
But if you threw a firecracker at the dog instead, causing the dog to catch on fire and become severely burned, the court is more likely to agree that the animal’s response was proportionate.
Getting The Right Legal Help
If you or a loved one were bitten by a dog and you think the owner will try to defend themselves by saying you provoked the attack, it’s important to work with a qualified New Hampshire or Massachusetts dog bite lawyer who has experience bringing cases against negligent dog owners and achieving successful outcomes.
You need an attorney who can zealously argue that your behavior before the attack does not meet the legal definition of provocation and that the dog’s owner is responsible for the damages you incurred.
At Mazow | McCullough, PC, we can advocate for you to receive the full and fair compensation you deserve for medical bills, lost wages, and other expenses you incurred as a result of being bitten by someone else’s dog.
Contact our office for more information or to book your free initial consultation by calling (978) 744-8000 or toll-free at (855) 693-9084.
