Forum Center: 08/12

Forum Center: What to do when dogs commit homicide

By Alex Culpepper

Illustration: Mike Keefe

If it seems news reports about people dying from dog attacks are appearing with more frequency, that’s because attacks are increasing. Known by legal experts as “canine homicides,” these attacks accounted for about 17 deaths per year in this country 20 or 30 years ago. Recently, however, the numbers have doubled, and 37 were officially reported in 2012. No one really has a definite reason why attacks are increasing, but all agree it’s a troubling phenomenon.

Here in the region, three recent high-profile attacks have drawn attention: Back in February, Dayton resident Klonda Richey was killed by dogs belonging to her next-door neighbors, even after she lodged formal complaints about the dogs; then in July, a seven-month-old boy in Dayton was attacked and killed by a family dog; and earlier this month, in Butler County, Cindy Whisman was killed by a dog belonging to her daughter. 

Laws vary throughout the country when dealing with dogs that seriously wound or kill a person, but in many places, including Butler County, owners have the option of keeping the dog after it’s quarantined and an investigation is completed. Sometimes the owners don’t want the dogs back. When that happens, the dog remains in custody of county animal control authority, but they are always deemed unadoptable and that leads to euthanization. In a lot of cases, the dog owners don’t have the resources to undertake a court battle to regain possession. That leads to euthanization as well. In the Whisman case, the dog’s owner decided to turn the dog over to authorities, and it was euthanized. There is debate, however, about what should happen to a dog that has seriously injured or killed someone.

Supporters of mandatory euthanization believe people come first, and vicious dogs that have done serious damage should not be placed back in close proximity to people. They say it is a public health issue, and the safety of a community outweighs the rights of a person to possess a vicious dog. 

Opponents of mandatory euthanization believe a one-size-fits-all law is not the way to go. One argument they stand by is dogs should receive a full professional evaluation to determine whether they are truly a future danger to someone else. 

Opponents also say dogs are property, and many city ordinances and animal control actions lack due process protections, all of which introduces constitutional issues unless the dog’s owner is criminally liable in the dog attack.

Dog owners may be feeling the heat soon. With so many attacks on people involving dogs with previous violent records, lawmakers and activists have been looking to bestow more responsibility for these incidents on the dog owners. The main goal is prevention, officials say, and the more solutions they can get in place, the less anyone has to worry about euthanasia.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

Debate Forum Question of the Week:

Should a killer canine be destroyed? Or should existing laws stand permitting owners to have the choice of life or death for the animal?

Debate right: Euthanasia is sad; the alternative, worse

By Marianne Stanley

Communities are still reeling from the horrific dog attacks in our area from February’s violent death of Klonda Richey to the very recent killings of a 7-month old baby in Dayton and the 57-year-old grandmother in Butler County. Two of the three attacks were by dogs that had previously charged at or attacked people. So far, we in southwestern Ohio have had not only those three deaths, but also one serious dog mauling this year – and dog attacks across the country are increasing. Some communities have tried to diminish incidents like these by passing ordinances against having a certain breed as a pet, notably, a pit bull. But, lovers and supporters of the breed have been effectual in stopping or removing such prohibitions as being too sweeping, too biased. Statistics do show, though, even though the pit bull breeds make up just 2 percent of the dog population, they are a factor in 63 percent of the attacks on people. The argument of whether the fault is inherent in the genes of the breed or in how the dog is raised rages on with no clear answers.

Common sense tells us any animal that kills is a danger to society and should never be returned to a home or any place where it can repeat that behavior. Even if a pet or an animal is seen as property and thus falls under the guidelines for property law, it would be illegal to keep such a hazard once it is known to be a danger to others, whether it is a deep hole on the land or an unsecured junk refrigerator that tempts wandering children to climb inside. We are all ultimately responsible for the safety of our premises and its residents, visitors or guests.

No law mandates euthanasia if a dog is protecting its owner or its owner’s home or property. One of the key desired characteristics of a good dog is its desire, in fact, to lay down its own life if needed, in order to protect the life of its owner, its family, its territory. The law in question allows the dog owner to contest the practice of euthanizing a family pet if the family disputes the need to euthanize. Remember, law is always wrestling with inherent tension between social and individual rights. This can get truly sticky at times, as we have seen with the ongoing gun issue.

Here, though, where a dog has maimed or killed someone, the system – even though it recognizes the rights of the owner to have a say in the matter of what happens to such an animal – is set up to take the necessary steps to prevent such an act from repeating itself. A dog that has been deemed vicious due to its attacks on a person is immediately taken from the owner’s home and quarantined until the court can hold a hearing if the owner disputes the euthanasia. The dog warden of Butler County, which is a division of the Sheriff’s Office there, said although the rules allow the owner to go to trial so he or she can fight to keep the animal, it is up to the judge to make the final decision, and no judge would keep such an animal alive to possibly harm or kill again. In the case of this grandmother’s death, the dog was already relinquished by its owner and has been put down. Undoubtedly, even if the owner had decided to fight the killing of her dog, the judge would have deemed it a menace to society and ordered it euthanized. 

The caveat here, though, is the attack must have been unprovoked and inexcusable, not an act of a dog protecting its owner or being provoked or tortured to the point where it fights back. Circumstances make all the difference. The policy in Butler County, then, must be seen as an attempt to balance owner’s proprietary interests and societal interests, in that it won’t mandate killing a family pet without examining the specific circumstances in the case when an owner has reason to believe the pet is not a danger and the attack was reasonable behavior, given the situation. Had a pet killed an intruder into a family’s home or grabbed a child from their yard, an incidental or even intentional harming/killing by the family pet would in all likelihood be seen as a good thing, with the dog being hailed as a hero. A hearing at least gives the family in uncertain circumstances a chance to be heard and to be given an opportunity to present evidence the pet poses no threat to humans and has no history of aggressive behavior toward them. This is a good place to note, the burden of proof falls on the pet owner rather than on the state, raising the barrier to retrieving the family pet once it has attacked or killed.

These kinds of cases are perfect for the law’s standard “Reasonable Man” test.  If a reasonable person sees continued threat to humans from an animal, euthanasia is the legal and only logical solution in such a terrible and sad situation.

Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at MarianneStanley@DaytonCityPaper.com.

Debate Right: Ohio’s dog bite laws are adequate

By Rob Scott

Are you the victim of a dog bite? If you are, call us now. We won’t get paid unless your case is successful.

This is what is heard commonly on television commercials from top personal injury attorneys trying to get clients who can sue regarding dog bites. One law firm in Dayton is what I would consider the leader in this type of advertising.

I’m not saying the advertising is bad, but when there are legal markets for dog bite victims, this means there is a sizable number of people being bitten by dogs.

Dogs biting and being aggressive is becoming more of an issue, due to the recent tragic news events in the Dayton region, and what seems to be a rise in the number of fatalities from those dogs attacking. The specific type of dog has been pit bulls, but I know there are several other breeds of dogs that can be and are more aggressive.

Common sense should be looked at first before running to the law. First, dogs are domestic animals and typically are made to be aggressive. There are plenty of pit bulls, German shepherds and others who are calm and collected. Dogs become vicious when the owner or trainer encourages the dog to be aggressive. However, there are certain breeds of dogs that, by nature, have a propensity to be more aggressive than others.

Another reason dogs and any other animals – including humans – get aggressive, is when they are hungry. Unfortunately, it is very common now for the mistreatment of dogs, including not feeding them or appropriately taking care of them. When this happens, animals get desperate and, hence, turn animal.

So, many ask, “what is the law in Ohio regarding dogs and when dogs attack?”

Ohio is a strict liability state that makes a dog owner, harborer or keeper liable for an injury to a person or the property of a person, including a person’s dog. A dog bite victim in Ohio can recover compensation under a special statute and the doctrines of negligence, negligence per se, scienter and intentional tort.

The traditional doctrine that makes a person liable for harm inflicted by a domestic animal is referred to as scienter, common law strict liability, or the one bite rule. As it applies to dog bites, this doctrine holds a victim can recover compensation from the owner, harborer or keeper of a dog if (a) the dog previously bit a person or acted like it wanted to, and (b) the defendant was aware of the dog’s previous conduct. If either of those conditions are not met, however, the victim cannot employ this doctrine as a ground for recovery.

Ohio supplements the doctrine cause of action with a dog bite statute. Ohio, therefore, is classified as a statutory strict liability state. Its dog bite statute makes a dog owner, harborer or keeper liable whenever his or her dog injures, bites or causes a loss to a person or to the property of a person (meaning a person’s dog or any other property of a person), even the first time. The Ohio statute does not apply, however, if the victim was trespassing, committing or attempting to commit a crime or was teasing, tormenting or abusing the dog on the owner’s, keeper’s or harborer’s property.

Also, the Ohio statute provides for the permission for someone to kill a dog if it is chasing, attempting to injure or kill someone.

Ohio also permits a dog bite victim to recover compensation on the ground of negligence. Negligence is the lack of ordinary care; that is, the absence of the kind of care a reasonably prudent and careful person would exercise in similar circumstances. If a person’s conduct in a given circumstance doesn’t measure up to the conduct of an ordinarily prudent and careful person, then that person is negligent. For example, letting a stray dog into a day care center is negligence.

In Ohio, the violation of an animal control law can result in liability on the part of the violator, whether or not he owns the dog. States, counties and cities often have laws requiring dogs to be on leash, or prohibiting them from being at large or from trespassing. With few exceptions, courts have ruled violating such laws can be the basis of liability. In this state, the violation constitutes negligence, per se.

Under Ohio law, the owner can be charged with a minor misdemeanor up to misdemeanor of the first degree. Fines range from $25 to $250 with jail time of up to 30 days. Penalties for owners of dangerous/vicious dogs are tougher and range from first degree misdemeanor to fourth degree felony. The dog itself could be ordered to complete dog obedience training or the dog can be ordered by the court to be humanely destroyed.

Ultimately, Ohio’s law in place does offer a range of options for both victims of dog bites and the dog owners. Ultimately, it is up the court – the objective decision maker – whether or not a dog should be destroyed as a result of the injury they commit.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman, founder of the Dayton Tea Party, member of the Dayton Masonic Lodge and Kettering Rotary. He can be contacted at rob@oldhamdeitering.com or gemcitylaw.com.

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