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By: Phyllis G. Coleman
Dogs who bite are euthanized and their owners (or their insurance carriers) are being forced to pay thousands of dollars due to outdated laws based on unproven assumptions about our beloved canine companions. Most state statutes impose financial liability on the owner for the resulting injury; other laws label the nonhuman animal “dangerous.” What happens next frequently depends on whether the dog was “provoked.” This concept, found in the statutes of 41 states, requires humans to decipher what is going on in a dog’s mind. Not surprisingly, experts warn that this is a fool’s errand as it is often difficult for people to understand what other humans are thinking, “[a]dd another species to the mix and you have the potential for significant, even catastrophic, misunderstandings.”

Researchers actually did not begin studying canine intelligence and emotions until about a decade ago. My interdisciplinary article reviews the empirical work being done in this nascent field of ethology (the study of cognitive ability of nonhuman animals), and concludes it does not support use of provocation as the test in dog bite statutes. The difficulty in deciding if a dog was provoked, and if so whether his response was “reasonable,” is exacerbated by the fact that there are approximately 4.5 million dog bites a year in the United States. The result is inconsistent, unpredictable verdicts that make it almost impossible for the responsible dog owner to figure out the rules and for the competent attorney to provide appropriate, helpful advice, whether his client is the owner or victim.

The costs in continuing to ignore these problems are high in terms of lives lost and money spent. For example, between 2008 and 2010, one county in Florida euthanized 56 allegedly “dangerous” dogs. Insurance companies bear the brunt of the financial burden. Indeed, one third of all homeowners’ claims are dog bite cases. In 2015, the average individual payment was $37,329 and the total payout was close to an astonishing $570 million!

Therefore, this article proposes a totally new approach and provides a uniform statute that moves the legal standard from the canine to the more appropriate locus – the owner and whether he properly trained and supervised his dog. This theory forms the foundation both for financial accountability under the civil liability portion of the uniform statute and criminal responsibility as part of the dangerous dog classification.

Legislators and animal advocates who want to encourage adoption of this novel but simple solution will find the appendix, a comprehensive compilation of statutes containing the specific “provocation” language from each state, an invaluable tool to start the process.

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