Sued for alleged negligence causing death of dog attack victim Klonda Richey
This is part II of a two-part series. See also Animal control director can be sued for dog attack death, court rules.
Most of the July 29, 2016 Ohio Second Appellate District Court of Appeals finding that Montgomery County Animal Resources Center director Mark Kumpf may be sued for alleged negligence leading to the death of Dayton resident Klonda Richey pertained to legal arguments and precedents.
Richey was killed on February 7, 2014 by two dogs variously identified in court documents as “large-breed pit bulls, mastiffs, or cane corsos.”
Liability not restricted to “owners, harborers, & keepers of dogs”
“We cannot agree with the trial court and with Kumpf that recovery for injuries caused by dogs is restricted to situations involving owners, harborers, and keepers of dogs,” the majority opinion concluded. “We agree with the trial court that a trier of fact could reasonably find that Kumpf’s actions were reckless, at least based on the allegations in the complaint…However, the issue of whether Kumpf owed a duty to Richey requires further exploration…The judgment of the trial court is reversed, and this cause is remanded for further proceedings.”
Differing legal view
Judges Jeffrey M. Welbaum and Jeffrey E. Froelich in a separate opinion agreed “with the majority’s thorough review of the case law,” wrote Welbaum, “and its conclusion that the trial court erred in dismissing the complaint,” based on the notion “that any claims for damages caused by a dog are restricted to owners, keepers, or harborers of the dog.” Welbaum and Froelich further agreed “that there are other legal and factual issues involved in this case that may need to be resolved in the trial court,” but “do not necessarily agree with any implication in our opinion as to what these issues are or how they should be characterized and, therefore, concur in judgment only.”
Dog attack attorney Kenneth Phillips comments
Commented Kenneth M. Phillips, a personal injury attorney based in Beverly Hills, California who has specialized in representing dog attack victims since 1993, “Being forced to live on a street with vicious dogs and irresponsible owners is nothing short of tyranny and cannot be tolerated. The authorities cannot claim to have the sole legal right to deal with vicious dogs, and then permit them to terrorize our communities. Every animal control department should be held liable for the consequences of allowing vicious dogs to exist within their jurisdictions.”
However, Phillips told ANIMALS 24-7, “At present, suits against animal control authorities have to be based on grounds established [separately] by each state, some of which do not permit dog bite victims to make claims based on negligence.
ACO failed to impound pit bulls
“The Jennifer Lowe case, handled by [Tennessee attorney] Wayne Ritchie and me,” Phillips said, “is an example of a successful negligence case against an animal control department. They knew about the vicious dogs that killed Jennifer but they failed to pick them up, leading directly to her savage mauling.”
Wrote Phillips of the Lowe case in December 2009, soon after winning a six-figure settlement for Lowe’s survivors, “Jennifer Lowe, 21, was killed by clearly vicious pit bulls owned by a male friend. The dogs were constantly at large. In one incident, they chased a police car and bit it, leaving teeth marks on it. In another, a police officer had to fire his handgun to avoid being attacked. He missed the dog but the dog ran away.
Deputies went to Taco Bell
“The dogs had been declared dangerous by animal control,” Phillips continued. “Nevertheless, the agency gave them back to the owner, with an order that he was required to cage them. One week prior to Jennifer’s death, the animal control officer arrived to check on the dogs. Once again, however, they were at large, and the cage had not been built. As the officer was approaching the house, the pit bulls actually chased her back into her truck. Despite this, she failed to confiscate them.
“Jennifer was killed in the most horrible mauling one could imagine,” Phillips recounted. “She was inside the dog owner’s mobile home, and was screaming for help for thirty minutes,” while “a neighbor made three calls to 911. The assignment (‘a woman is being attacked and is screaming for help’) went out to two deputy sheriffs. Incredibly, they decided to drive to Taco Bell and eat lunch, and after that, the lead deputy gassed up his car.
Why is failure to protect Richey admitted as Kumpf’s defense?
“We won our case against them for that reason,” Phillips summarized, “that they were negligent. That should be the law everywhere.
“The court decision in the Klonda Richey case, however, mentions the ‘special relationship’ doctrine,” Phillips told ANIMALS 24-7. “This is a terrible ground for a dog bite case. It says that the animal control department cannot be sued unless there was a ‘special relationship’ between it and Klonda Richey, in other words, that they were protecting her. Well, that was the problem, right? They did not protect her, resulting in her fatal mauling. They did not have a ‘special relationship with her,’ resulting in her brutal, painful death. Why should the animal control department make it their defense that they failed to protect her?
“This is unfair,” Phillips argued, “because the issue should be negligence in the performance of animal control duties, not whether there was a ‘special relationship’ with the victim. So this case highlights a loophole in the law that must be closed: dog bite victims should always have the right to base a case on the negligence of the animal control department, if its negligence was indeed a substantial cause of the accident, as in this case.”
YourLawScholar.com blogger says…
Agreed YourLawScholar.com blogger J. Thomas Beasley, author of the 2015 book Misunderstood Nanny Dogs?, “In general, the problem with any negligence case against a public entity that failed to do a routine––or public––duty, is that of proximate cause. If the victims are able to prove a ‘special relationship,’ then the duty would be an individual duty to the particular injured party, and proximate cause is easier to establish. But its always difficult to hold public bodies liable in tort for general negligence. The [Ohio] legislature should specifically provide for liability in a case such as this, where a clear dereliction of duty resulted in a death.
“There are also issues of qualified immunity,” Beasley mentioned, “which is often provided to public servants to shield them from liability for official acts and omissions.”
“In any event,” Beasley told ANIMALS 24-7, “I do hope there is some redress, if only to put other animal control departments on notice that their failure to respond to dangerous dog complaints is a recipe for disaster and liability.”
Kumpf won 2015 case on “qualified immunity”
Kumpf in 2015 won both a lower court verdict and an Ohio Second Appellate Court of Appeals verdict on grounds of qualified immunity after he was sued by Eric Wiggins, a pit bull and/or Presa Canario owner whom Kumpf in November 2012 suspected of dogfighting.
After Kumpf obtained a warrant based on his personal observations during a visit to Wiggins’ home, and executed a search of the premises, “Wiggins was charged with multiple felonies, but a grand jury refused to indict him,” the appellate verdict in Wiggins’ lawsuit recounted.
Ironically, had the Ohio state law designating pit bulls not been undone, in large part through Kumpf’s multi-year campaign, Wiggins could at least have been ordered to keep his pit bulls in more secure conditions, and could have been prosecuted if he did not.