Dog Bite Law

Facts

On November 25, 2005 five dogs belonging to Jose Hernandez got loose. They escaped their pen, which was behind a short fence, only three feet tall. These were pit bull - Rottweiler mixes -- the two breeds of dog that have been responsible for over half of the canine inflicted human deaths in recent years.

The dogs headed down the street. 76-year-old Lillian Stiles was gardening in her front lawn. Stiles and her husband lived on 10 acres in Thorndale, about 70 miles west of College Station. The dogs either dragged her from the seat of her lawnmower, or took her down as she stepped from it or onto it. The dogs mauled and mutilated her to the point that she was beyond recognition. "She was so disfigured, they didn't realize she was a woman," said her daughter, Marilyn Shoemaker. "They thought maybe she had been run over by the mower." She died as a result of the attack. Her husband, Jack Stiles, shot one of the dogs. The rest were captured and euthanized.

Criminal case

Like the prosecutors in the Diane Whipple case, the district attorney here found the existing laws to be inadequate. There was and is no state law that specifically addresses canine-inflicted homicides (i.e., deaths of humans, caused by dogs). (For proposed changes to the dog bite law of Texas, see Texas on this web site.)

Texas law addresses a different situation, namely the consequences of having a dog that previously was adjudicated as being "dangerous." Heath & Safety Code §822.041 provides that a court may declare a dog “dangerous” basically if it causes injury in an unprovoked attack. It is a Class C misdemeanor if the owner violates the provisions of the dangerous dog law or the dog causes serious injury in an unprovoked attack. It is a Class A misdemeanor if the dangerous dog causes a death of a person in an unprovoked attack. A $10,000 penalty may also be imposed on the owner whose dangerous dog causes serious injury or kills someone. Texas Heath & Safety Code §§822.044, 822.045. (See generally Dangerous and Vicious Dogs for discussion of the legal meaning of "dangerous" and the issues pertaining to legal "dangerousness.")

If a dog has not been previously declared "dangerous," however, there is a "loophole" in the law, in that there is no law that addresses the situation. Given the savageness of this killing, prosecutors attempted to apply the general law. To make the punishment fit the crime, the grand jury indicted Jose Hernandez for criminally negligent homicide. His trial took place in March 2007.

The conviction of this dog owner depended upon overcoming the bane of dog bite victims, namely the one-bite rule. Under this ancient British legal doctrine, the owner of any domestic animal is not held responsible for the first bite, the first mauling, or the first killing by each and every one of his animals. (See The One-Bite Rule.) Texas is in a minority of states that continues to salute the flag of Great Britain when it comes to dog bite laws. (For lists of states that follow or have abrogated the one-bite rule, see Legal Rights of Dog Bite Victims in the USA.)

Hernandez testified that he had no idea his animals were capable of such brutality. He admitted none of his animals had ever been seen by a veterinarian and hadn't been vaccinated. Several other witnesses for the defense testified that Hernandez' dogs were not aggressive and were not trained to be aggressive.

The jury found Hernandez not guilty.

When should a dog owner be found guilty of murder because his dog killed a person?

When this trial began, Lillian Stiles' daughter, Marilyn Shoemaker, stated, "There needs to be accountability. I think this prosecution will send a message across Texas and the United States: if you’re a pet owner and they have the ability to cause serious injury or death, you need to think about how you are containing them."

But the jury found that there was no crime in the death of Lillian Stiles. If this trial was about the accountability of dog owners, especially those who own dogs having the ability to cause serious injury or death, what message was sent across Texas and the United States? Can we conclude that the law does not require accountability?

The trial of Jose Hernandez should not lead to that conclusion. It should raise the issue, when should a dog owner be found guilty of homicide or murder because his dog killed a person? Furthermore, it and the cases like it should make lawmakers conscious of the need for specific, well-reasoned, fair laws pertaining to the obligations of dog owners.

The jury voted not guilty because the testimony from Jose Hernandez and others created a reasonable doubt that he had the state of mind required for conviction under the Texas criminally negligent homicide statute. This trial was as much about the wording of that statute as it was about what happened to Lillian Stiles.

A general statute that is based upon the actions of people is difficult to apply to the actions of dogs. The experience of Texas mirrors the experience of California, in the Diane Whipple case. The appeal in the Whipple case has been going on for 5 years, with no end in sight. Diane Whipple was the lady killed by dogs in San Francisco. California prosecutors had to try one of the dog owners for two felonies that specifically pertained to the actions of dogs, and for second-degree murder based on recklessness. There were convictions on the charges pertaining to dogs, but the trial judge threw out the guilty verdict on the murder charge.

The California cases and statutes pertaining to murder naturally were drafted for killings by people and not by dogs. Consequently, the Whipple prosecution was like filling a square peg into a round hole, and the trial judge ultimately could not allow the guilty verdict to stand. His decision has been on appeal since 2002.

Every state needs specific criminal laws that pertain to the actions of dogs. If we are going to punish dog owners, we must first be clear about what we are punishing them for. To arrive at the right kind of law, we must ask ourselves what the owner should be brought to trial for.

Throughout the USA, there are different answers to this question. In many states, the trial is about what the dog owner knew about his dog, as opposed to the actions of the dog. That was the focus of the Lillian Stiles homicide trial. Because of the wording of the Texas criminal law under which Hernandez was charged, the trial focused upon his state of mind and his knowledge of his dogs. The mind set created by the one-bite rule -- which shields dog owners from legal responsibility for the first munch, mauling or murder -- made secondary the horrific manner in which this defenseless senior citizen was killed.

In other states, the focus is upon the actions of the dog. A dog owner is deemed to be criminally responsible if his dog injures a person, without consideration of the dog owner's knowledge. This type of law is based upon the generally accepted belief that all dog owners are responsible for their dogs' actions. It is the owners who pick the dogs, keep the dogs healthy or unhealthy, socialize or don't socialize the dogs, train or don't train the dogs, and put the dogs into situations that might or might not be dangerous to others. It is the owners who either muzzle their dogs or don't.

Laws that focus on the actions of the dog, as opposed to the state of mind or knowledge of the owner, are referred to as "strict liability" laws. If something happens, the owner is strictly responsible, without excuse or with limited excuses (typically, it would be an excuse if the dog bit a person who was attacking the dog owner, or while doing police work, etc.). The punishment is based upon the degree of severity of the consequences of the dog's actions. A minor injury results in a minor conviction, such as an infraction, while a severe injury is a misdemeanor or light felony, and a killing is a moderate felony.

For the 2007 legislative session, Texas lawmakers have introduced a number of bills that would increase the penalties imposed upon dog owners under a variety of circumstances. One of the bills would make a killing such as that of Lillian Stiles a serious felony, punishable by up to 20 years in prison.

Dog owners deserve specific laws that will tell them exactly what their civil and criminal liabilities are. There are 70 million dogs in the USA by some estimates. It is unfair for the public to have only a vague idea of the consequences of dog ownership. Vague standards also will not curb the dog bite epidemic, because they will not tell people exactly what they should or should not do.

A dog owner should not be found guilty of murder when his dog kills a person, unless the state where the killing takes place has a specific law that places all dog owners on notice as to exactly what they might be punished for, whether it be their knowledge, their state of mind, or purely the actions of their dog. The jury in the Lillian Stiles case tells us that a conviction is difficult or impossible without such a law, because such a conviction can be unfair. The 5-year struggle of the California prosecutors for a second-degree murder conviction in the Diane Whipple case tells us the same thing.

Every state should enact specific criminal laws pertaining to dog ownership. These laws should be based upon the actions of the dog, not the knowledge or state of mind of the dog owner, because it is the owner that picks the size and type of dog and is responsible for its health, training, socialization, muzzling, and the situations it gets into. It is the owner who controls the degree of risk that the dog presents to neighbors. No state should leave loopholes by failing to enact such laws, because the recent experience of California and Texas tells us that convictions are unsure unless they are based upon specific laws for these situations.

www.dogbitelaw.com and each of its sections and products, including Dog Bite Law, The Dog Bite Law Adviser, Dog Bite Litigation Forms, What To Do If Your Dog Is Injured Or Killed, Avoiding Liability When You Train, Shelter or Adopt-Out, Anatomy of a Dog Bite Case, and the foregoing text, are (c) 1999-2010 Kenneth M. Phillips. All rights reserved. Reproduction in whole or part prohibited except where advance permission is granted in writing. Please read the disclaimer and our rules for linking and quoting. Reporters seeking interviews are welcome to contact us by clicking here.