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When is a Dog Bite “Provoked?” (Boots v. Winters)
When is a dog bite “provoked?” Teasing, poking, being mean or entering a dog’s territory generally leads to the dog defending itself by biting. The following case demonstrates a dog being provoked which lead to a dog bite incident.
Boots v. Winters Case
A child and his mother had dog bite injuries when a neighbor’s dog attacked the child and his mother. The boy had been kicking a fence and swinging his jacket over the fence at a dog. The dog grabbed and pulled the boy’s jacket into the backyard and then he climbed over the fence to retrieve the jacket but was attacked before he could climb the fence again. The mother tried to free her son but was also attacked by the dog. A police officer shot the dog and killed it.
The court noted that a property owner owes a duty an invitee to keep the property free from dangerous conditions. But the duty to a trespasser is only to refrain from willful acts that cause injuries. The court noted that the boy bitten by the dog was a trespasser.
The court found that the dog was provoked when the boy kicked the fence and swung his jacket at the dog. The boy was attacked by the dog only after he climbed over the fence to retrieve his jacket.
Idaho law makes a dog owner liable for dog bites by a vicious dog but not when the bite is to a trespasser or when the dog is provoked. Any dog which, when not physically provoked, physically attacks, wounds, bites or otherwise injures any person who is not trespassing, is vicious. The statute does not create a duty on a landowner for an attack by a vicious dog harbored on his or her property when the victim provoked the dog or trespassed on the property.
The court concluded that the evidence showed that the boy provoked the dog and that he and his mother were both trespassing when they were attacked. The court found that there was not a violation of the state statute.
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