Salcedo was attacked while simply walking down the street. The dogs escaped from the private yard of John and Maria Hardiman. When a man tried to intervene, he was forced back into his car by the attacking dogs. An officer was then attacked and had to shoot a dog.
The city is still deciding whether to kill the remaining animals.
The question is what liability the Hardiman’s will face. Under the common law rule, neighbors are generally protected under the so-called “one free bite rule.” For example, dogs are subject to strict liability if they are known to have bitten someone. The rule is a bit of a misnomer, as reaffirmed recently in Georgia. It does not take one bite to put a pet owner on notice to attach strict liability. It is sufficient if a person knew or had reason to know the vicious propensity of the animals. This rule has been reduced to a simple instruction in New Mexico:
UJI 13-506, embodies New Mexico’s doctrine of liability of dog owners for injuries caused by vicious dogs. The instruction reads:
An owner of a dog is liable for damages proximately caused by the dog if the owner knew, or should have known, that the dog was vicious or had a tendency or natural inclination to be vicious.
[The owner of such a dog is not liable to the person injured, if the injured person had knowledge of the propensities of the dog and wantonly excited it or voluntarily and unnecessarily put himself in the way of the dog.]
New Mexico courts will consider (as do most courts) any form of prior notice. For example, in Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953), the court held an owner’s knowledge of his dog’s vicious propensity in its relationship with another dog sufficient to render the owner liable for injuries inflicted on a child. However, in Smith v. Village of Ruidoso, 1999 N.M. App. LEXIS 130, the court held that
“we conclude that HN13Go to the description of this Headnote.a negligence claim is appropriate where the dog owner lacks knowledge of the dog’s vicious propensities and ineffectively controls the animal “in a situation where it would reasonably be expected that injury could occur.” Arnold, 621 P.2d at 141; see also DeRobertis, 462 A.2d at 1266 (“If either the dog is not vicious or the owner does not know of its vicious propensities, then negligence, not absolute liability, applies.”); Griner v. Smith, 43 N.C. App. 400, 259 S.E.2d 383, 388 (N.C. Ct. App. 1979) (“The HN14Go to the description of this Headnote.owner of a domestic animal is chargeable with knowledge of the general propensities of certain animals and he must exercise due care to prevent injury from reasonably anticipated conduct.”); Westberry, 577 P.2d at 76 (“Failure to confine or control . . . can give rise to a cause of action in negligence.”).”
That is likely to be the argument of the Hardimans. This often comes down to discovery and witnesses. If these dogs routinely snapped or charged neighbors, they are going to have a tough time. Moreover, even under negligence, they could be found liable.
There also remains the question of criminal liability. If there were prior incidents or complaints, the case could resemble the case of lawyers Marjorie Knoller and Robert Noel who were both sued civilly and convicted criminally in a horrific dog attack case.
In this case, these dogs not only killed this woman but attacked two individuals who tried to intervene. Moreover, the attack lasted only minutes but was sufficient to kill the victim. Pit bulls are illegal in many cities because of the view that they are inherently more likely to be vicious and dangerous. Many pit bull owners contest that stereotype. However, sites like Dogbite insist that the data supports the stereotype: “Research from DogsBite.org shows that during the 5-year period from 2005 to 2009, these two breeds accounted for 70% of the total recorded fatal attacks.1 By compiling U.S. and Canadian press accounts between 1982 and 2009, a report by Animal People shows that pit bulls (160) and rottweilers (71) and their mixes accounted for 67% of the total recorded fatal attacks.”
It is clear that pit bull owners have a more difficult time before juries because of the general view of these dogs — even if there is no ordinance barring such ownership. There are hundreds of dog bite cases involving pit bulls. Judges often note, as in Altman v. City of High Point, 330 F.3d 194 (4th Cir. 2003). “[The dog in question] was part pit bull, and pit bulls, like Rottweilers, are a dangerous breed of dog.”
However, there is an interesting decision in Dias v Denver2010 U.S. Dist. LEXIS 103814, where experts collided over the view that pit bulls are generally more dangerous than other breeds. Here is the court’s summary of part of the testimony:
Dr. Beck cites two studies to support his opinion that Pit Bulls are more likely to bite than other breeds. In the first study (published in 1989), 101 dogs whose breeds could be determined were studied. He states that the study showed that Pit Bulls comprised 43% of the attacking dogs with the second most frequent biters being Siberian huskies, malamutes, and their mixes at 18%. ECF No. 94-3 at 2. He also reports that the study found that Pit Bulls are more prone to kill than other breeds. Id. (listing Pit Bulls as 18.8% fatal single dog attacks followed by Rottweilers at 10.9%, and German Shepherds at 8.2%.); see also, Alan M. Beck Dep., 73:16-75:2, ECF No. 94-7 (stating that Pit Bulls are more likely to be involved in attacks than any other dog).
In contrast, Plaintiffs’ experts agree with one another that a propensity to bite and cause harm cannot be predicted only from breed-specific characteristics, such as appearance. Dr. Karen Overall states that whether a dog bites is not a question of his breed (Expert Rep. of Dr. Karen Overall, MA, VMD, PhD at 7, ECF No. 100-4) nor is breed determinative of propensity to attack and that appearance is not necessarily reliable in determining a breed. See Dep. of Karen Overall, MA, VMD, PhD at 2, 6-7 ECF 100-10. “People need to stop thinking about breeds because they think they are all the same, and start thinking about individual dogs and the factors that can cause serious damage in a bite.” Id. at 6.
Dr. Randall Lockwood, another expert for Plaintiffs, agrees with Overall, stating that the breed of a dog is not a predictor that a dog will attack or bite. See Rebuttal Rep. at 2, ECF 100-2; see also, Expert Rep. of David L. Banks, PhD at 5 (quoting Sacks, Lockwood, Hornreicht, and Sattin, Fatal Dog Attacks, 1989-1994, Pediatrics 1996 Jun (Pt. 1:891:5), ECF No. 100-6. (“Breed specific approaches to the control of dog bites do not address the issue.”)). He says that dog bites are a result of the interaction of many factors including the dog’s sex, spay/neuter status, health, breed, and specific lineage within a breed, the owner’s socialization of the dog, the training and treatment the dog receives, the supervision and restraint of the animal, and the actions of the victim. Rebuttal Rep. at 2, ECF 100-2; see also, Expert Rep. of Dr. Karen Overall, MA, VMD, PhD at 2-6, ECF No. 100-4
Dr. Lockwood notes that the more popular a dog, the more frequent the incident of bites by that breed of dog. Rebuttal Rep. at 3, ECF 100-2; see also, Expert Rep. of Randall Lockwood at 6, ECF No. 100-4 (stating that relative risk that a dog of a specific breed will bite must be measured against a good estimate of the population of all breeds); Expert Rep. of David L. Banks, PhD at 9 (citing Sacks, Lockwood, et al, Breeds of Dogs Involved in Fatal Human Attacks in the United States, 2000) (noting that the update of the 1996 paper reports that Rottweiler-related deaths increased as the breed became more popular), ECF No. 100-6.
The defense expert specifically noted the following warning issued over the use of a 2000 Center for Disease Control (“CDC”) study on the dangers of pit bulls. A formal letter was issued by the CDC that said:
the data contained within [the CDC] report CANNOT be used to infer any breed-specific risk for dog bite fatalities (e.g., neither pit bull-type dogs nor Rottweilers can be said to be more “dangerous” than any other breed based on the contents of this report.) To obtain such risk information it would be necessary to know the numbers of each breed currently residing in the United States. Such information is not available.
Given the disagreement, the court reversed a summary judgment and left the matter to the jury.
In the end, what is clear is that Hardimans need a good lawyer and possibly two good lawyers.