Death in Truth or Consequences: Woman Mauled To Death By Four Pit Bulls

There is a tragedy in Truth or Consequences, N.M, where Margaret Salcedo, 48, was mauled to death by four escaped pit bulls. The case could present both criminal and civil liability for the owners.

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.

Source: Reuters

Jonathan Turley

32 thoughts on “Death in Truth or Consequences: Woman Mauled To Death By Four Pit Bulls”

  1. The spider-man quote goes “With great power comes great responsibility.” I see big, powerful dogs the same as handguns — the owner should be responsible for the consequences regardless of whether or not s/he was negligent at all. In the case of handguns, I think owners should be liable for shootings as much as 10 years after the gun is reported lost or stolen.

  2. Building on Frank’s point…
    The “70% are from Pit Bulls” doesn’t prove that Pit Bulls are inherently more dangerous than any other dog. It may or may not be true, but the dogbite.org argument can be weakened. All this might prove is that people who train dogs to be vicious prefer the pit bull over other breeds.

    For the sake of argument, say we had data that showed that 70% of all fatalities from gun shots were from 9mm caliber guns. If one were to take this data to suggest that 9mm guns were more deadly than .357 or .45 caliber guns, any reasonable person would rightly laugh away that argument.

    Selective breeding may have saddled the pit bull with attributes preferable for fighting or attacking – strong, stout body with powerful jaws and a disposition allowable for easy training – but for the most part, dogs are products of their environment.

    I have little doubt that if I had a pit bull puppy, I could raise it to be just as docile and lovable as all the other dogs of many different breeds I have ever owned.

    Cheers.

  3. I have family that raised and showed dogs. The ‘point’ of showing dogs is supposed to be breeding them to the standard (its not really why people do it but thats a long story for another time).

    If the standard says dog X should be between 22 and 24 inches at the shoulder judges will disqualify one that is 25 inches high (usually, thats part of the story too). But some breeds are required to be aggressive. Judges will take points away if those breeds if they do not display aggression. So, yes, some breeds are designed to be ‘mean’

    There is no AKC breed ‘wiennerdog’ but people know which dog I mean, same with pit bull, the American Bull Terrier to the AKC, Staffordshire Fighting Dog in the UK.

    Like cheap handguns, the problem is not technically the weapon but the people attracted to them. Because of breeding Staffordshire Fighting Dogs tend not to release once they have bitten making them much more deadly than other breeds known for biting like Rottweilers, German Shepherds or Doberman Pincers.

    Saying pit bulls are dangerous dogs may not be technically accurate, just like saying walking around the bad part of town after dark is not technically accurate. The blame is still on the owner but as a breed those are dogs I don’t want around me.

  4. “Please do not continue the stereotype about pit bulls, regardless of what the site Dogsbite has to say.”

    I don’t want to pick a fight, but this is a typical statement about Pitbulls that is wrong. Everyone is overlooking the reason that they have such a bad reputation. They have centuries of selective breeding for agressive fighting dogs that is driving their behavior. The breed exists because of the sport of fighting. You can’t blame the dogs for this, but it is a fact. They are no different than the fat city living Beagle that goes out to the country and immediately puts his nose down looking for rabbits. Or the Border Collie that instinctively knows to circle a flock of sheep. They were bred to do these things. Pitbulls that had no will to fight or weren’t aggressive enough were left out of the gene pool. And that makes for a modern dog that can be very dangerous when it has all the inherited traits it was bred for yet is living where it is forbidden to use them.

  5. Lies, damn lies, statistics. Saying that bulldog bites are more numerous is meaningless without considering whether bulldog themselves are more numerous.

    But rafflaw is right, the problem might not be bulldogs being violent, but instead owners wanting violent dogs choosing bulldogs because of their reputation, then training them accordingly.

  6. One Pitbull, no problem. Four Pitbulls, problem. The owners got some serious splainin’ to do.

  7. Joeey,

    Because making a dog purposefully aggressive would invite a higher grade of charges depending upon the circumstances of the attack.

    You should also keep in mind that there is a difference between training a dog to fight (general or uncontrolled aggression) and training a dog for security or combat purposes (controlled aggression). A trained security or combat dog will only attack (if not ill) under specific circumstances or by command. A dog trained to fight will attack any other dog and other targets without rhyme nor reason. Dogs trained to fight are inherently dangerous, and as such, subject their owners to higher exposure to civil and criminal liability for the actions of their animals.

  8. I don’t understand why so much emphasis is placed on whether or not the owners were ‘good.’ If a dog kills someone, or injures them at all, why would it matter if the owner was good or not? The owner is responsible- whether they raised their dog to be a babysitter or to fight.
    If a dog is big enough to kill someone then their owner should be responsible enough to control the animal so that it will never have the opportunity to kill. If the dog some how still kills someone then the only possible person who can be held responsible is the owner.
    Pit bulls can kill grown men. They can easily kill children. They are animals- not walking bags of goodness and light. They can turn in a second- whether or not their owners are ‘good.’ They are the preferred dog for dog fighting and ‘security’ and there is a reason for that.

  9. I don’t necessarily blame the dogs but it isn’t uncommon for certain breeds to be a little more “tightly wound” than others. With that in mind, owners should be especially careful in ensuring that breeds that can be (not “are” but “can”) by their nature inherently vicious are properly contained.

    This couple better hope they can afford a good attorney …

  10. The difference with a pit bull is that when they bite they have more force than other breeds because of their big jaw.

    My parents had a german shepherd that was rejected by a police department because of his friendly and non-aggressive personality. I got into a fight with my little brother when I was 11 and he was 9 and the dog intervened and bit my brother. But he didn’t bite hard enough to really hurt him.

    Later I had a Great Dane and a chow mix. They got into a fight over pizza and the chow bit me because I was in between but even though it punctured my skin I wasn’t seriously hurt.

  11. What breed a “pit bull” is? Never seen one at the AKC.

    Typical media hysteria results in lumping all dogs into one evil category. Hell, most jurisdictions can’t even agree on which breeds (let alone mixes) fall into this category.

    The worst dogs I see on a daily basis are tiny little lap dogs that the owners baby and these are more likely to bite than most large dogs. And small dogs can kill or seriously injure small children.

    Under 40 people die a year from dog bites. No reason to have knee-jerk reactions.

    I’m fine with holding moron owners responsible as they impact potential owners on top of direct victims.

    If you are too stupid to raise a dog or so naive as to think an aggressive one is cool, I rather you be removed from my society.

  12. Negligence in the keeping of the fence, or whatever was used to keep them in the yard, might be an additional count in the complaint.

    My view is that a pack of dogs is a different thing from an individual dog.

    The pack factor is relevant in this case to show that these folks wanted more than just a good pet pit bull.

  13. First off – let me pile on to the objections to claims that certain breeds are more dangerous. In particular, Prof Turley repeated the dog bite site’s categorization of including “mixes” with the specific breeds. Identifying the components of a mix, without pedigree paperwork available for the parents, is nearly impossible. Many dog owners have a hard time picking any of the pit bull breeds out of a “lineup” of pure bred show dogs, let alone differentiating an American Pit Bull Terrier from a Staffordshire Bull Terrier. So accurately categorizing mixed breed dogs as having a substantial portion of their genetic makeup from one of these breeds and/or Rottweilers (as opposed to a Bulldog or Boxer mix, for instance) is very difficult.

    There are all sorts of self-selection problems with this situation.

    In the end though, it’s hard to imagine that the owners of the dogs that killed this woman were particularly good dog owners.

  14. Most property insurers will not issue premises liability policies or insure bites from pit bulls. Someone should pull the owners property insurance application. Most of them ask if you have a dog and what breed it is. There is a good chance that the property owner lied on his application about his dogs. Most mortgage companies require property insurance including liability insurance for injuries on the premises so the owners probably did get insurance. They usually ask you to update your information once a year.

  15. There is a problem with pit bulls, but it is a people problem. When the owners breed them and train them to be vicious, then problems will occur. I can’t imagine that these owners will be successful in defending themselves. These were obviously extremely dangerous dogs and there will be witnesses from the neighborhood that have been threatened by these dogs prior to the deadly incident. Sad situation, but these owners should be responsible for the death of this innocent bystander.

  16. I agree with Joeey, put the charges on the owner.

    The big problem with that is many people who own these dogs and work them to be vicious don’t care.

  17. I think owners must be fully accountable for their pets. I do not think breed specific laws are needed (I do believe pit bulls are dangerous) but the assumption should be that any dog over a certain size, maybe 30 lbs.?, should be considered inherently dangerous.
    I am not an attorney (so I am going to use the wrong words) but I think that the law should be that an owner of an animal greater than 30 lbs. should have to have complete control over the animal at all times. In the event of any injury there would be an automatic assumption of negligence on the part of the owner. A bite? Assault. A mauling resulting in death? Negligent homicide. A guest lets the dog out and it kills? Negligent homicide.
    Then people will know the true costs/benfits of having large, possibly dangerous, animals. If you are responsible you should be fine.

  18. Dangerous dogs should be controlled but breed specific legislation does not work. Those that want ferocious dogs just find a dog not on the list and train it to be vicious. This was true with German shepherds, Saint Bernards, Rottweilers, Doberman Pinchers……..
    Dogbite dot com is run by an attorney for the purpose of placing damning evidence into the public domain.

  19. How about strict liability based upon the animals inherent propensity based upon the breed….

  20. Please do not continue the stereotype about pit bulls, regardless of what the site Dogsbite has to say. There’s no true scientific basis for the claims the site makes. The data it draws its conclusions from data that is primarily anecdotal.

    As you noted related to the one court case, we don’t even know that the dogs that mauled this woman are actually pit bulls. Many dogs are perceived to be pit bulls and are not. The CDC will not longer identify the breed of dog in dog bite cases because it has found that the breed is misidentified, more likely than not.

    My roommate volunteers at a local shelter, and the pits and pit mixes are some of the most wonderful and loving dogs, but frequently don’t get a home because of breed specific laws or people’s unreasonable fear.

    Blame the owner, not the dog.

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