About a week before his master left office, Sunny, a Portuguese Water Dog, bit a family friend just under her eye.
According to witnesses, the unidentified 18-year-old tried to give the dog a kiss, and the animal evidently interpreted her move as aggressive. After the animal was removed, White House physician Ronny Jackson attended to the victim by cleaning her wound and stitching up the large gash on her face. Reportedly, she may have a permanent facial scar as a result of the animal attack. The Obamas own two Portuguese Water Dogs — 4-year-old Sunny and 8-year-old Bo — who have never bit anyone before.
Some observers opined that the victim scared the dog, prompting the violent reaction.
Dog Bite Law
This incident underscores the fact that any animal can attack at any time for any reason, because Portuguese Water Dogs are generally known to be very family-friendly dogs that are especially good with children and for people with allergies.
Washington, D.C. basically has a modified one-bite rule, so unless the animal was “at large” when it attacked, victims must establish negligence to recover damages. Typically, this means that the owner knew the animal was dangerous and nevertheless decided to keep it. However, California is a strict liability state, so victims only have to prove cause to receive compensation for their medical bills, lost wages, and other economic damages, as well as their emotional distress, loss of enjoyment in life, and other noneconomic damages. Given that many victims are children, these noneconomic damages tend to be substantial, because animal attacks often traumatize children who are entirely unaccustomed to such unexpected aggression. Special rules apply to minors as well, as outlined below.
The broad law is probably one of the reasons that the Golden State leads the nation in terms of dog bite homeowners’ insurance claims (1,684 in 2015) and value of claims ($76 million in 2015). Police dogs, military dogs, and trespassers are the only exceptions listed in Civil Code 3342; otherwise, dog owners are fully liable for all damages “suffered by any person who is bitten by the dog while in a public place or lawfully in a private place.” According to Sherwin Arzani, a dog bite attorney in Los Angeles, CA, “If your dog bites someone in California, you can almost certainly expect to pay damages to the injured victim.”
Some municipalities and counties expand the strict liability rule even further, applying it to caregivers, custodians, veterinarians, and other non-owners. If there is no such law, victims attacked while animals are in a non-owner’s custody must usually either prove negligence, or a lack of ordinary care, or scienter (“knowledge”), meaning that the custodian must have known that the animal was dangerous.
Insurance Company Defenses
As the name implies, there is basically no defense to liability under a strict liability law, unless one of the limited exceptions applies. However, the measure of damages is a different matter, and this is where insurance companies concentrate their efforts.
Many people probably noticed how, in the above story, some observers are quick to blame dog bite victims for provoking or scaring the animals. However, under California law, provocation has a very specific meaning. The insurance company must prove that the victim intentionally provoked the animal to attack, usually by prodding it or using some other action. Words alone are normally insufficient, and non-violent actions that the dog misinterprets are nearly always insufficient as well. Moreover, very young children (usually those under age 5) cannot provoke dogs as a matter of law.
If the victim legally provoked the animal by inflicting pain that was so intense as to justify a violent response in the animal, the jury must divide fault on a percentage basis, such as 50-50 or 70-30 or whatever. Since California is a pure comparative fault state, the judge will then reduce the plaintiff’s damages by the proportion of contributory negligence.
In scienter and negligence cases, assumption of the risk might be a factor. To disprove negligence, the defendant must prove that the victim voluntarily assumed a known risk. If the attack occurred in a public place, the involuntariness prong is probably not present; if the victim did not actually know that the dog was dangerous, the defense is also inapplicable.