Haggblom—Provocation Considered In The Dangerous Dog Context
Haggblom v. City of Dillingham
Provocation Considered in the Dangerous Dog Context
Concurring Opinion Highlights Provocation Issues
Haggblom's dog bit a co-worker when she tried to open a gate to her work area. The dog was found to be vicious since it had bitten without provocation and was to be euthanized under Dillingham's dangerous dog ordinance. Haggblom appealed, arguing the ordinance was vague, since there was no definition of provocation, and other procedural grounds.
The dog's classification was affirmed on appeal, because the facts were clear and there was not much to argue with respect to provocation and the bite itself. However, the concurring opinion does a wonderful job of discussing the problems with the ordinance, including the issue of provocation.
The Government has the burden to prove that an attack was unprovoked —It is not a defense to be proved by the owner
Example: Marion County Ordinace
Showing the attack was "unprovoked" is required and Marion county's burden
The Marion County Ordinance's definition of dangerous dog in Section 4-2 makes it the government's burden to prove the attack was "unprovoked." The Ordinance defines it as follows:
Unprovoked attack means that the victim who has been conducting himself or herself peacefully and lawfully has been bitten or chased in a menacing fashion or attacked by a dog. Where an animal is attacked on its owner's property by another animal off it's owner's property, the attack will be presumed unprovoked, absent clear evidence to the contrary.
Interestingly, F.S.§ 767.11 does not include in its overall definition the requirement that any attack be unprovoked. Provocation is only an issue when the attack (or scare) is in connection with a person. F.S. § 767.11(1)(d) states:
(d) Has, when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, provided such actions are attested to in a sworn statement by one or more persons and dutifully investigated by the appropriate authority.
F.S. § 767.11(2) further defines provocation as:
(2) "Unprovoked" means that the victim who has been conducting himself or herself peacefully and lawfully has been bitten or chased in a menacing fashion or attacked by a dog.
It would appear, then, that the Marion County Ordinance is broader in terms of allowing provocation as a defense in an animal upon animal attack.
The defense of provocation is ill defined at this point. There is not much case law on the issue, and the concept is an elastic one. Can a cat provoke a dog just by existing in the same visual space? If a cat arches his back in the street and then runs on his property and is attacked, does that constitute provocation? If you hit a dog to chase it off your property and ten minutes later it is aggressive to animal control when it is picked up, has it been provoked? Can a child of four provoke a dog? The issues are many, the case law sparse.