Lucillie Strickland was walking with Xavier at about 12:30 p.m. on her way to volunteer at Thurgood Marshall Elementary School when the pit bulls attacked them. She fell on the boy and was bit on her ear, leg and back. When she rose, the dogs grabbed Xavier and pulled him under a fence and killed him.
Lyons is charged with second-degree murder, manslaughter and possessing dangerous animals causing death. The dogs were reportedly a constant menace in the neighborhood and had previously escaped. Indeed, the boy’s 9-year-old sister had been attacked by the dogs last month but the dogs got away. The family has filed a lawsuit.
Under the common law, dogs unlike wild animals are not subject to strict liability. As a domesticated animal, dogs are subject to a negligence standard. This led to the evolution of a “one-free-bite” rule where after a bite, the dog was presumed to be vicious and the owner was potentially subject to strict liability for future attacks. The rule is a bit of a misnomer. You do not get a free bite if the dog showed vicious propensities in other ways.
It is often said that Michigan does not have the traditional one-free-bite rule. That is not entirely accurate. Instead it has a statutory and a common law standard. Under the Michigan Dog Bite Statute (MCL § 287.351), the first bite is sufficient for liability if the victim (1) was lawfully on the property and (2) did not provoke the dog. There is also a common law rule that, while said not to be a one-free-bite rule, comes close to the common law rule. It states that the victim only has to prove that the owner of the dog knew (or should have known) that the dog had vicious propensities. That is pretty much the same standard since the one free bite was viewed as giving the owner notice of the vicious propensities of the animal. That notice can be established by other means than an actual bite. Nevertheless, it is true that this common law is superseded by the statutory provision when applicable.
In this case, the dog would fall under any of the rules — statutory or common law. The prior reported incident would be enough to establish notice of the vicious propensities of the dogs.