Trespass As A Defense
Most dangerous dog statutes or ordinances have a provision that excludes from their dangerous dog definition, dogs who injure someone who is "committing a willful trespass or other tort upon the premises...occupied by the...keeper of the dog." This makes sense, as many breeds of dog can be expected to protect their territory. This very issue decided the Broward case of Gomez v. Broward County Animal Care and Regulation Division.
The Hearing Officer found Zeus dangerous for biting an exterminator while he was spraying the owner's back yard.
There was an issue of provocation. The exterminator, entering the backyard unannounced was met by a dog who jumped up at the mask around the exterminator's neck. The exterminator pushed the dog away and was bitten in the process. The court did not decide the case on whether the exterminator provoked the dog by pushing. Instead, it concentrated on that part of the Broward Ordinance which states that no dog will be found dangerous if a person is injured while comitting a trespass. Since the exterminator did not ask for the owner's permission to go in the backyard, he was not lawfully there, and was a trespasser. Zeus was therefore absolved, and the Court ordered him off of death row and back to his owners.
Thus in every case, it must be determined whether the person injured was in a place where they had the owner's permission to be.
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