Dog Bite Defenses: Trespass and Provocation

By the FigureMyTax Editorial Team · How we calculate

Without a bite statute, the defenses come from the vicious dog statute and general negligence law.

The statutory exceptions

No dog may be declared vicious if the injured person was committing a willful trespass or other tort upon the premises, or was teasing, tormenting, abusing or assaulting the dog, or was committing or attempting to commit a crime.

Lawful visitors

The vicious dog definition covers attacks on a mailman, meter reader, serviceman, journeyman, delivery man or other employed person on private property by permission or course of dealing.

Your own negligence

Under SDCL 20-9-2, your negligence must be slight compared with the owner's for you to recover, and damages are reduced in proportion to it.

Knowledge

Under scienter the owner can argue it had no reason to know the dog was dangerous; a traditional negligence rule can still apply if the owner knew or reasonably knew the animal might attack.

Insurance

Dog bite claims are often paid under the owner's homeowner's or renter's insurance.

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