Dog Bite Defenses: Provocation and Trespass

By the FigureMyTax Editorial Team · How we calculate

The statute writes its own limits into its text: the bite must be unprovoked, and the victim must be lawfully present.

Provocation

The statute applies only to a bite “without provocation.” In 1995 the Montana Supreme Court ruled that provocation must be determined on a case-by-case basis, and one summary notes that courts tend to view it narrowly.

Lawful presence and trespass

A person is lawfully on private property under MCA 27-1-715(2) when performing a duty imposed by state or federal law or postal regulations, or as an invitee or licensee of the person lawfully in possession. A trespasser is outside the statute.

No comparative negligence under the statute

Montana case law, as summarized by a dog bite treatise, does not permit comparative negligence or other affirmative defenses to the statutory claim, except provocation and trespass, which the statute itself mentions (Stroop v. Day, 1995).

Outside cities and towns

A claim for scienter or negligence is not under the statute, so modified comparative negligence applies: your recovery is reduced by your fault and barred if your fault is greater than the defendants' combined.

This is general information, not legal advice, and the state comparisons above are illustrative, not an exhaustive survey. Confirm how Montana's rules apply to your specific case with a licensed Montana attorney.