Dog Bite Defenses: Provocation and Fault

By the FigureMyTax Editorial Team · How we calculate

Because New Mexico decides dog bites under scienter and negligence, the owner's defenses are about knowledge, care and your own conduct.

No knowledge, reasonable care

The owner's first defense is that it did not know and had no reason to know the dog was vicious, and that it used reasonable care. Evidence of prior incidents, warnings or leash-law violations defeats it.

Provocation

Provocation coupled with scienter on the part of the victim precludes the owner's liability. In other words, a victim who knew the dog was dangerous and provoked it can lose, while provocation without that knowledge is weighed as comparative fault.

Pure comparative negligence

New Mexico uses pure comparative negligence, which reduces damages by your percentage of fault rather than barring recovery. A person 90% at fault can still recover 10%.

Government dogs

Governmental entities in New Mexico cannot be held liable for scienter, but can be held liable for negligence, so a bite by a police dog or other government-owned dog is pursued as a negligence claim with a 90-day notice and a two-year limit.

Insurance

Compensation often comes from the owner's homeowner's or renter's insurance.

Official sources

• N.M. Stat. § 41-3A-1 — several liability

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