Background:
In Oregon, a couple and their dog visited a popular restaurant that allowed dogs in an outdoor seating area. However, the dog apparently became nervous with the noise and the crowd. When the waitress took the couple’s order, she leaned over the table so they could converse amidst the loud environment. In the process, the waitress accidentally brushed the dog with her foot. The allegedly distressed dog reacted violently by biting the waitress on her face.
Resultantly, lateral to her mouth, the waitress suffered a severe laceration of several inches in length. In addition to her immediate medical bills, she would likely need future cosmetic surgery, may incur permanent disfigurement, and experienced pain and suffering.
Subsequently, the waitress sued the dog owner. The dog owners’ homeowner’s insurance company wished to examine whether there were viable rebuttals to the policy holder’s culpability. Therefore, an adjustor and attorney employed by the insurer contacted a CPT expert for consultation regarding possible defenses.
Workmen’s Comp and Liability Issues:
The CPT expert opined that an employee injured on the job should be eligible to collect worker’s compensation from the employer’s insurance plan. However, in most states the employer is responsible for paying only up to the limits of the plan. If medical expenses, lost wages, and related expenses exceed plan limits, the employee may not sue the employer for the excess, unless the employer exhibited gross negligence. Furthermore, the plan may not cover the employee if the employee violated a law, was under the influence of drugs, or did not adhere to company policy (provided there was a relevant policy).
There was no evidence of the waitress violating a law. Likewise, there was no evidence the waitress was under the influence of illegal narcotics. Neither did she consume legal prescription medication that affected her physical or cognitive performance.
Yet, perhaps the waitress did not adhere to company policy regarding interaction with customer dogs. Thus, the CPT expert advised the insurer to subpoena a copy of the retaurant’s policy manual. We specifically wished to view whether there was company policy regarding the positioning of dogs underneath a table. Relatedly, was there company policy for approaching tables where dogs were present?
In addition, the homeowner’s carrier needed to review the employer’s workmen’s compensation policy. The defense team could then ascertain coverage limits in comparison to the Plaintiff’s claimed damages.
Furthermore, the homeowner’s insurer needed to determine potential negligence by the restaurant. State law prevented the waitress from suing her employer. However, there was no law preventing the carrier from instituting a crossclaim or from arguing the doctrine of comparative negligence. A degree of fault assessed to the restaurant could reduce damages attributed to the dog owner.
Oregon’s Comparative Negligence Law:
Oregon is a modified comparative negligence state. To receive an award for damages, a Plaintiff cannot be more than 50% at fault. Therefore, if the waitress is 51% at fault, then she receives nothing. And if she is less than 50% at fault, her award can be reduced based upon her percentage of fault.
In addition, the court can consider the fault of third parties, even if they are not parties to the lawsuit. Consequently, without a crossclaim, an argument of employer fault can mitigate damages assessed to the dog owner.
Pertinent Questions- Waitress:
To further an argument of potential plaintiff negligence, did the waitress violate company policy in how she approached or managed the table? Regardless of company policy, was the waitress careless when physically contacting the dog? Had she previously stepped on a person or a dog? Did she know of a similar event affecting another staff member or at another restaurant?
If yes, there may be an onus on the waitress to be more cautious when approaching any table- and especially one with a dog. Moreover, if the waitress (Plaintiff) had such knowledge, and then acted carelessly in her approach toward the table, one could argue that she was the principally negligent party, not the dog owner.
Pertinent Questions- Employer:
We also wished to evaluate potential arguments for employer negligence. Did similar dog bite events occur previously on company property? Was the employer aware of the potential for wait staff injury arising from staff-dog interaction? Should the employer have been aware based upon prior industry events published in newspapers or trade journals? Did the employer fail to publish a policy or handbook containing procedures that would have minimized risk of staff injury? Did the employer contract for specialized training that would have minimized risk of staff injury?
Depending upon the answers, one could reasonably argue the employer did not exercise a reasonable duty of care to its employees. Consequently, the defense team could benefit by investigating employer policies and actions and by deposing employer executives.
Pertinent Questions- Dog Owner:
Lastly, the CPT expert recommended the carrier query the dog owner regarding the dog’s behavioral history. Did the dog inflict a prior bite? Did the dog have a history of aggressive vocalizations or postures without a bite? Had the dog previously visited a busy outdoor restaurant patio? During such restaurant visits, did the dog appear relaxed? Or did the dog appear stressed?
If the dog had no history of aggression and had a history of successful restaurant visits, then the dog owners had no scienter (notice) about the dog’s aggressive potential. Moreover, the defense could better argue that the waitresses’s careless physical movement caused acute pain to the dog, whereby the dog’s high arousal response was a pain-induced response that would not have occurred absent of the waitress’s carelessness. Therefore, the waitress was the party principally at fault for her injuries.
Conclusion:
The insurance company incorporated CPT’s consultation within its strategy during settlement negotiations.
Considerations When Hiring an Expert Witness in Dog Behavior