Today the Minnesota Supreme Court issued an interesting ruling about the defense of provocation in the field of dog bite law. In the case of Engquist v. Loyas, the court held that under the canine injury liability statute (Minn. Ann. C. section 347.22) “provocation” is voluntary conduct by the plaintiff-victim that exposes him to a risk of harm from the dog, where he had knowledge of the risk.
This definition is both good and bad for dog bite victims. It’s good because it limits provocation as a defense. Provocation has been misapplied in some cases to cover just about anything that can stimulate a response by a dog. For example, a person who whistles while he is one block away from a dog might cause the dog to jump up and thereby injure another person who is standing next to the dog. If provocation is merely defined as an act that causes a dog to respond, then the whistling could arguably constitute provocation, and could prevent a victim from receiving fair compensation for his injuries.
The Engquist case equated provocation with an entirely different doctrine called “assumption of the risk.” The latter is a defense which is based upon an appreciation of a danger as well as a voluntary act that exposes one to it. If the victim is bitten or injured because of an act on his part signifying that he has consented to the possibility of getting bitten or injured, then he is said to have assumed the risk, and therefore he cannot hold the dog owner legally liable for the payment of damages. In the context of canine inflicted injuries, the defense of assumption of the risk usually is limited to veterinarians, dog trainers and similar types of dog bite victims. Therefore the nature of assumption of the risk and the type of victim that the defense is used against are quite different from provocation.
While it is good in some ways to limit provocation to actions which assume the risk of injury, it is bad because it leaves out an essential element of provocation, namely the usual requirement of justifiable self-defense on the part of the dog. For example, if a person hits a dog with a stick or steps on its paw, the doctrine of provocation usually prevents the person from receiving compensation for his injuries. In other words, a provocative act is one which provides justification for the dog’s violent reaction along the lines of self-defense.
The Minnesota ruling focuses on assumption of the risk but leaves out the element of justifiable self-defense. The Engquist case itself demonstrates the harm that this new definition of provocation might case. The little girl in this case was bitten while attempting to pet a friend’s dog in a dark area. Engquist holds that the jury is entitled to decide whether the girl provoked the dog and therefore should be barred from receiving compensation for her injuries. This is unfair to the girl because she did not do anything truly provocative — that is, anything that would justify a violent act of self-defense on the part of the dog.
In leaving out the essential element of self-defense from its new definition of provocation, the Minnesota Supreme Court has expanded the definition of this defense, while at the same time limiting it to situations involving assumption of the risk. This case therefore is both bad and good for victims.