Springfield attorney Claude M. Kicklighter may not be a pit bull of a lawyer but his client certainly is. Kicklighter’s new client is Kno, a pit bull facing euthanasia after attacking a five year old boy. Judge William E. Woodrum Jr. has enlisted Kicklighter pro bono to represent the dog. In layman’s term, that means it will be all bark and no bones for Kicklighter.
Kno attacked Wesley Frye, 5, while Wesley was playing with a friend inside a neighbor’s home. One of the dog’s owners, Julie Long, stopped the attack, but Wesley had to undergo two surgeries. The dog was declared dangerous by the state and the owners surrendered ownership. The dog’s other owner, Larry A. Long Jr., was told that he could request a hearing to challenge the dog’s classification.
He did not request a hearing and the county moved to euthanize. I am a bit surprise by the appointment of counsel since this is often done without a hearing, let alone representation. Moreover, absent a case of mistaken identity, Kno meets the legal definition of a vicious animal in the attack. Indeed, some jurisdictions have laws categorically barring pit bulls or, more commonly, declaring them to be vicious or dangerous animals. The latter approach triggers common law strict liability for any bites.
The Longs certain have reason to worry if Kno had a previously history of vicious behavior. The common law “one free bite rule” is a misnomer. A bite is not needed if the dog has displayed vicious tendencies by charging neighbors or destroying property.
One of the most infamous cases involved two lawyers. Lawyers Marjorie Knoller and Robert Noel were successfully prosecuted after their huge “Presa Canario” dogs mauled and killed neighbor, Diane Whipple, in the hallway of her San Francisco apartment building in January 2001. Whipple was bitten 77 times and the dogs nearly severed her vertebrae.
Jurors found Marjorie Knoller’s husband, Robert Noel, guilty of involuntary manslaughter, and found Knoller guilty of second-degree murder.
The common law rule also applies to wild animals. Defining some animals as wild can be done with reference to statutes or the lack of animus revertendi (the habit of return). The most common category in the United States is the possession of wolves or part-wolf animals as pets.
The decision not to contest the classification might come at a legal cost. While the Longs could still argue that there was no basis for considering Kno a dangerous animal before the attack, a plaintiffs’ lawyer could try to get into evidence the determination by the court. It would be the subject of a pre-trial motion and could be kept out of trial. However, what if the court based its decision not simply on the attack but the dog’s behavior before the attack?
Either way, the Longs could be looking at liability under either a strict liability or negligence theory.