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Should Tinkerbell the pit bull live?

Posted on 4 May, 2015 at 16:55

From the perspective of one who handles dog bite cases, and who also loves dogs, there is an interesting case set for argument before the Supreme Court of Appeals of West Virginia on May 12, 2015.  It is styled as State of West Virginia v. Blatt, No. 14-0757.  In a nutshell, nine year old Nicholas Blake owned a pit bull terrier mix breed dog, who he had named Tinkerbell.  On March 31, 2014, some of the neighborhood children, including a minor designated as LL in the record, had come over to play with Nicholas.  At that time, Tinkerbell, or Tink as Nicholas called her, was confined to the fenced in front yard.  As a result of a neighbor passing through the front yard and into the back yard and leaving the gate ajar, Tink was able to join the children in the back yard where they were playing.  Everything was going well until Tink began to play with a ball on her own. Tink punctured the ball and then thought to bury it.  Unfortunately, LL approached Tink, and took the ball from her, and held it up and away from the dog.  Tink jumped up, and in attempting to retrieve the ball from LL, struck LL in the mouth and nose area.  The evidence was that when Tink struck LL, she also bit her in the mouth.  LL required several stiches for her lip.

A criminal trial pursuant to West Virginia Code section 19-20-20 was had later that summer.  Section 19-20-20 reads as follows:

Except as provided in section twenty-one [19-20-21] of this article, no person shall own, keep, or harbor any dog known by him to be vicious, dangerous, or in the habit of biting or attacking other persons, whether or not such dog wears a tag or muzzle.  Upon satisfactory proof before a circuit court or magistrate that such dog is vicious, dangerous or in the habit of biting or attacking other persons or other dogs or animals, the judge may authorize the humane officer to cause such dog to be killed.

At the conclusion of the bench trial (without a jury), the Blatts, Nicholas's parents, were found not guilty of having violated section 19-20-20.  You would think that would be the end of the story, but, in this instance, the Judge decided to hold a hearing on the question of whether Tinkerbell was "vicious, dangerous, or in the habit of biting or attacking other persons."  At the hearing, the evidence presented suggested that immediately after the March 31, 2014 incident, Tink retreated from the yard and cowered under a bar stool.  LL's parents testified that they had never known Tink to be vicious or dangerous, and that they had no concerns with LL playing with Nicholas in his yard.  The animal control officer testified that Tink was a very docile dog, and did not act vicious, or appear to be dangerous, but he did allow that family dogs could turn very easily.  In the end, the Judge determined that Tink was a vicious, dangerous dog, and was in the habit of biting other persons or attacking other persons, and ordered that Tink be euthanized.  The Blatts appealed the decision to kill Tink.

In this case, I'm pulling for Tink, and I think the Judge got it wrong.  Section 19-20-20 was enacted for the purpose of protecting the public from dogs that are vicious, dangerous, or in the habit of biting or attacking people.  In the matter of Durham v. Jenkins, 229 W.Va. 669, 735 S.E.2d 266 (2012) the West Virginia Supreme Court of Appeals considered section 19-20-20, and had this to say:

Section 19-20-20, which is entirely criminal in nature, only provides for the killing of a dog when it is first found that the dog's owner committed a crime described in the first sentence of the section.  During that criminal proceeding, upon finding that the dog is dangerous, which is an element of the crime to be proved, the judge may then order the dog killed... This Court holds that the authority to order a dog killed pursuant to W.Va. section 19-20-20 (1981), stems solely from a criminal proceeding, and a private cause of action may not be brought for the destruction of a dog under this section.

In the case against Tink, the Judge ruled that a single incident was enough to find a dog vicious, dangerous or in the habit of biting other persons.  I think that the Judge is using a little judicial activism to see that justice, as he sees it, is done.  (Perhaps he suffered at the paws of an unruly dog when he was a child?)  The statute is pretty clear.  The legislature, who, for better or worse, create our laws, determined that a crime is committed under section 19-20-20 if the owner of a dog knows that the dog he is keeping, owning, or harboring is vicious or dangerous.  In that dogs cannot articulate their vicious or dangerous intent beforehand, in order to know whether a dog is vicious or dangerous, the owner must be aware of a similar act of viciousness or dangerousness occurring at some point earlier in time.  Additionally, throughout section 19-20-20, the legislature used the phrase "habit of biting or attacking", which suggests that the legislature was concerned not with the dog that had committed a solitary nip, but rather with the dog that had made it a habit to bite other persons or animals.  This is more in keeping with the common law doctrine sometimes called the "one bite rule".  (It should be noted that because LL was an invitee to the Blatts' backyard, and LL was injured by Tink, the Blatts are liable to LL for her civil damages regardless of the 'one bite rule'.  I am concerned, however, many insurance companies are excluding pit bulls from coverage, but that is a story for another day.)

I hope that following the May 12 argument, Tink is permitted to return home to Nicholas.  If the Judge does not like the law, he should lobby the legislature to change it, but he should not twist it from the bench to satisfy himself.  I also hope that LL is able to recover for her damages, which, even if Tink only gave her a nip, can be substantial.  I'll let you know how things go.   

Categories: The law

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Reply Elizabeth Hunsinger
1:13 on 5 May, 2015 
This does not appear to be a vicious act by Tink and, therefore, the dog should not be euthanized.
Reply Michael
1:30 on 6 May, 2015 
Elizabeth, I couldn't agree more. Tink did what all happy dogs will do. This judge has overstepped his job. Thanks for commenting!