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Syracuse Law Review




Julie A. Thorne

Copyright 1988 by the Syracuse University College of Law; Julie A. Thorne



During the past two years, extensive media attention has been devoted to attacks by vicious dogs. [FN1] Part of this coverage stems from the fact that although the actual number of dog bites has declined in recent years, [FN2] the severity of the attacks has increased. [FN3] Additionally, many of the victims--typically small children [FN4]--are *1446 often seriously disfigured as a result of the attacks. [FN5] But perhaps the most significant statistic reported by the news headlines is that one particular type of dog figures prominently in many of the attacks, namely the American Staffordshire Terrier [FN6]--a breed commonly known as the "pit bull." [FN7] Although this type of dog accounts for only two percent of the total canine population, it is rapidly developing a perhaps undeserved--if not media-generated--reputation as a heartless killer. [FN8]

*1447 The public outcry stemming from attacks by pit bulls has prompted lawmakers across the country to re-evaluate current pet control laws. [FN9] Many of the resulting ordinances, however, have been enacted in haste and fail to adequately address the overall problem of controlling all dangerous or vicious dogs. [FN10] Legislation designed to ban specific breeds--such as the pit bull-has generally been subject to constitutional challenges [FN11] and has been widely criticized by owners and breeders. [FN12] And, as the legislative debates continue, some states have approached this problem from a different angle by successfully prosecuting and convicting owners of animals that have attacked and killed human beings. [FN13]

*1448 This Note will assess the current status of both legislative and judicial decisions regarding dangerous or vicious animals. Section I will evaluate current legislation designed to regulate dangerous and vicious dogs and will discuss the constitutionality of breed-specific legislation. [FN14] This section will also offer suggestions as to the proper focus of future legislation [FN15] and will highlight the most recent legislative endeavors in this area. [FN16] Section II will provide a historical perspective by tracing the evolution of owner liability for attacks by vicious animals under traditional tort law principles. [FN17] Finally, section III will focus on the emerging trend towards imposing criminal liability on the owners of animals that attack and kill human beings. [FN18]




Serious or fatal attacks in various communities [FN19] have prompted lawmakers to re-evaluate the pet control laws currently in effect and have led to the drafting of breed-specific bans and ordinances. [FN20] For example, a pit bull ordinance in Hollywood, Florida [FN21] required owners to complete special registration forms and carry $25,000 in liability insurance. [FN22] A similar ordinance in Cincinnati, Ohio [FN23] required all pit bulls to be either confined indoors, kept in a locked pen, or leashed and muzzled when off the owner's *1449 property. [FN24] An ordinance in Chester, Pennsylvania [FN25] required pit bull owners to post a $20,000 bond to cover any injuries caused by their animal and subjected any pit bull running at large in the community to confiscation by the police. [FN26] Additional breed-specific proposals have been considered in Brookhaven [FN27] and Mt. Kisco, New York, [FN28] in addition to Wilkinsburg, Pennsylvania. [FN29]

These breed-specific bans and ordinances pose two specific problems. First, applying these strict control measures only to pit bulls raises constitutional issues with regard to vagueness, [FN30] overinclusiveness, [FN31] and underinclusiveness. [FN32] Secondly, by addressing only one type of dog, the ordinances fail to consider the overall problem of regulating and controlling all types of dangerous dogs. [FN33]

A. Constitutional Challenges


The enactment of animal control laws has traditionally been recognized as a constitutionally legitimate exercise of a state or city's police power to protect public welfare and safety. [FN34] Moreover, police power regulations of this type are presumed to be constitutionally valid, provided the lawmakers can demonstrate a rational relationship between the requirements of the law and the *1450 promotion of public safety. [FN35] Many recent canine ordinances, however, attempt to regulate only one specific breed or classify one type of dog, the pit bull, as inherently dangerous. [FN36] As a result, these breed- specific bans and ordinances raise constitutional issues with respect to the dog owner's fourteenth amendment rights to due process and equal protection. [FN37] Before examining these due process concerns, however, it is important to note that modern case law does regard dogs as legally recognizable property. [FN38] Accordingly, the provisions of the fourteenth amendment apply when addressing the constitutionality of breed-specific bans and regulations. [FN39]

The fourteenth amendment provides, in pertinent part, that "no state shall deprive any person of property without due process of law or deny any person equal protection of the laws." [FN40] The due process requirement has two separate components--the actual substance of the law and the procedure by which the state seeks to enforce it. [FN41] The equal protection aspect seeks to guarantee that the classifications imposed by the law are not suspect and do not arbitrarily burden the specified class of individuals. [FN42]

1. Substantive Due Process

The test for evaluating a substantive due process claim is one *1451 of reasonableness. [FN43] If a rational relationship exists between the challenged regulation and a legitimate governmental end, the constitutionality of the challenged act will be upheld. [FN44]

Applying this test to breed-specific legislation, there would appear to be sufficient evidence to support the reasonableness of banning or regulating only pit bulls [FN45] as a legitimate exercise of the state or city's police power. [FN46] As discussed in the introduction to this Note, pit bulls have been responsible for a number of serious or fatal attacks within the last year. [FN47] Additionally, this particular breed is frequently used for dogfighting [FN48] and appears to be generally perceived by the public as a mean and vicious animal. [FN49] Although much of the "pit bull hysteria" may be media- generated, [FN50] it may be argued that state legislatures, by attempting to ban or regulate the breed, are merely responding to a perceived threat of danger to the public. [FN51]

Accordingly, in light of the number of serious attacks involving pit bulls, it would appear that banning this particular breed within a certain area is a legitimate exercise of a state or city's police power. Thus, breed- specific legislation may withstand a substantive due process challenge. [FN52] It must be noted, however, that although breed-specific legislation may successfully clear this particular constitutional hurdle, [FN53] its effectiveness in addressing the overall problem of regulating all dangerous and vicious dogs--regardless of breed--is questionable at best.

*1452 2. Procedural Due Process

The procedural due process component requires that the law in question provide citizens with adequate notice as to the particular conduct that is being regulated or prohibited. [FN54] If the law in question fails to provide adequate notice or encourages arbitrary enforcement of the law by the state, the law is unconstitutionally vague and, thus, violates due process. [FN55]

Vagueness represents one of the more common challenges to breed-specific legislation. [FN56] This challenge is most likely to occur when the ordinance in question is unclear with regard to the breeds covered by the statutory provisions. [FN57] As discussed in the introduction to this Note, the term "pit bull" is a generic classification and often refers to a dog of mixed ancestry. [FN58] Accordingly, it may be quite difficult for a dog owner to determine if his particular pet is subject to the mandates of a given breed-specific statute. [FN59] This determination may be particularly difficult if the dog in question is unregistered or of a mixed breed. [FN60]

This problem was first illustrated in 1982, when a Hollywood, Florida ordinance [FN61] was challenged on constitutional grounds. [FN62] *1453 The ordinance "clearly" stated that it applied only to the owners of an American Pit Bull Terrier or American Staffordshire Terrier. [FN63] The court found, however, that despite this apparent particularity, the ordinance presented "notice problems for citizens and enforcement problems for the police." [FN64] Specifically, the court determined that neither the owners nor the police had any effective means for determining whether a particular pit bull--especially one that was unregistered or of mixed ancestry--was in fact one of the types described in the statute. [FN65] Accordingly, without knowing whether a particular dog qualified for regulation under the statute, it was not only difficult for owners to comply with the statute but also for police officers to enforce it. [FN66] Thus, the court found that the statute, as written, was vague, arbitrary, and an unconstitutional violation of due process. [FN67]

This same issue was reviewed in 1985 following the enactment of a pit bull ordinance in Shawnee, Kansas. [FN68] The ordinance prohibited the possession, ownership, or harboring of pit bulls within the city limits after June 5, 1985. [FN69] This provision was subsequently amended to allow for the "grandfathering" of any pit bulls registered in the city as of the effective date of the ordinance. [FN70] This amendment allowed owners to possess registered pit bulls within the city limits, provided the additional conditions enumerated in the statute were met. [FN71] As with the Hollywood ordinance, specific breeds were listed in the ordinance. [FN72] Additionally, there was was a catch-all provision covering "any dog which had the appearance and characteristics of . . . any other breed commonly known as pit bulls . . . ." [FN73]

The ordinance was subsequently challenged on constitutional grounds and appears to represent the first time an ordinance regulating *1454 a particular breed of dog was upheld. [FN74] In its post-hearing memorandum, the City of Shawnee addressed the challenge that had been made with respect to vagueness. [FN75] Arguing that the challenge should be upheld "only if the enactment [was] impermissibly vague in all of its application," [FN76] the City noted that the constitutional test for interpretation of the term "pit bull" was one of ordinary terminology and meaning. [FN77] In other words, the City contended that the term "pit bull" was commonly understood in the community and subject to reasonable interpretation by owners and veterinarians. [FN78] Moreover, there was considerable testimony to the effect that the plaintiff knew his dog was a pit bull and that the term was generally recognized by veterinarians and animal control officers in the city. [FN79] Accordingly, because the term pit bull was found to be a commonly used and understood designation in this specific case, the court concluded that the ordinance was constitutionally permissible. [FN80]

Although the Shawnee, Kansas ordinance and other similar breed-specific regulations have each cleared their respective constitutional hurdles, [FN81] the potential for future ordinances falling to the vagueness challenge still exists. [FN82] Admittedly, an owner who knowingly purchases a registered pit bull and receives papers documenting the dog's ancestry from the breeder or seller clearly knows what type of dog is being received. The situation differs, however, where the owner purchases the puppy from a friend or neighbor and neither of the parties involved can discern the exact breed of dog that sired the litter. Furthermore, it is unclear as to what percentage of American Pit Bull Terrier or American Staffordshire Terrier blood is sufficient to "qualify" a dog as a pit bull under a particular breed-specific statute. Finally, if a police officer confiscates a particular dog on the street, the question arises whether it *1455 is sufficient justification that he "believed" the dog "looked like" a pit bull. The breed-specific statutes currently in effect do not appear to provide any clear resolution to these issues. The question of "what is a pit bull" remains a heavily debated and largely unresolved issue. [FN83] Until this question is definitively answered, breedspecific legislation will continue to be problematic and ineffective.

3. Equal Protection

Equal protection challenges are also evaluated in terms of reasonableness. [FN84] In evaluating the challenged regulation, courts apply minimal scrutiny unless the classifications employed are suspect or affect fundamental rights. [FN85] Traditionally, there must be a rational basis for the use of the particular classification and a reasonable relationship must exist between the classification employed and the purpose of the law. [FN86] Classifications may violate the equal protection clause, however, if they are overinclusive or underinclusive. [FN87]

Although a rational basis for the classification of pit bulls may exist, this Note argues that breed-specific bans and regulations, particularly as they apply to pit bulls, may be challenged as either overinclusive or underinclusive. To the extent that lawmakers attempt to define pit bulls by the definitions utilized by the American Kennel Club or the United Kennel Club, [FN88] they run the risk of including any type of dog that even remotely resembles a pit bull or bears any of the characteristics commonly associated with pit bulls. [FN89] As a result, relatively rare breeds of dogs--or breeds possessing a negligible amount of pit bull in their ancestry--may be encompassed by such overinclusive ordinances, even though the specific type of dog qualifying under the ordinance has not been involved in any reported attacks. [FN90]

Alternatively, breed-specific bans may be viewed as underinclusive.*1456 Although pit bulls have been involved in a number of severe or fatal attacks, [FN91] many other breeds are also capable of inflicting serious injuries. [FN92] By banning or regulating only pit bulls, breed-specific ordinances fail to recognize that other types of dogs may be equally dangerous [FN93] and offer little or no protection for individuals attacked by any type of dog not covered in a particular statute. [FN94] Accordingly, whether viewed as overinclusive or underinclusive, this Note contends that requiring only pit bull owners to adhere to strict, breed-specific statutory provisions constitutes a violation of the equal protection clause of the fourteenth amendment. [FN95]

B. The Proper Focus of Dangerous Animal Legislation


In addition to being challenged as unconstitutional, breed-specific legislation is misdirected in that it treats one symptom (pit bulls) but not the overall problem of controlling all dangerous dogs and promoting responsible pet ownership. [FN96] The Humane Society of the United States (HSUS) [FN97] has responded to breed-specific legislation by drafting a manual aimed at effectively addressing this problem. [FN98] This manual is designed to assist communities in assessing problems with dangerous and vicious dogs and identifying exactly what actions need to be taken. [FN99]

As a starting point, HSUS has recommended that each community gather information from appropriate sources, including breeders, veterinarians, animal control officers, police officers, and animal owners. [FN100] Additionally, local lawmakers should review existing *1457 pet control laws prior to drafting new legislation. [FN101] By doing so, each community may accurately assess its individual needs, explore the concerns raised by members of that community and, in turn, incorporate these needs and concerns into any proposed legislation. To aid communities in this endeavor, HSUS has identified what it considers to be the proper scope of any dangerous dog law [FN102] and has proposed a workable definition of a dangerous or vicious dog. [FN103]

The scope and actual language of the model ordinance proposed by HSUS appears to strike a balance between protecting members of the community, respecting the rights of responsible pet owners, and treating the animals involved in a humane manner. [*1458 FN104] And, perhaps more importantly, the guidelines offered by HSUS reflect the need to encourage lawmakers to focus on the temperament of the animal instead of on a specific breed. Only when lawmakers appreciate the importance of this distinction may communities begin to effectively resolve their problems with dangerous or vicious dogs.

Another organization responding to the need for model legislation is the National Institute of Municipal Law Officers (NIMLO). [FN105] NIMLO's proposed model ordinance closely parallels the language suggested by HSUS with respect to the confinement and muzzling of the dog, in addition to containing provisions for posting warning signs and securing adequate liability insurance. [FN106] One distinguishing feature of the NIMLO model ordinance, however, is its varying definitions of a "vicious dog." [FN107] In addition to containing an optional breed-specific provision defining pit bulls as vicious dogs, [FN108] the ordinance provides that "any dog which because of its size, physical nature, or vicious propensity is capable of inflicting serious physical harm or death to humans" may be considered vicious. [FN109] Arguably, this language could be construed as a "generic" attempt to ensure that pit bulls would qualify as vicious dogs under the ordinance. [FN110] Alternatively, this provision could be viewed as a positive step towards defining a vicious dog based on factors other than its particular breed. [FN111] Under either interpretation, however, the model NIMLO ordinance--minus its optional breed- specific language--appears to offer a workable alternative to the breed- specific regulations currently in effect.

Once a community has determined the proper scope of any dangerous dog legislation, it is important to identify the proper audience for the legislation. As the overall problem of controlling dangerous or vicious animals is a human problem, any new legislation *1459 should be directed at breeders, [FN112] sellers, [FN113] and pet owners. [FN114]

1. Breeders

Although several different breeds fall under the general classification of pit bull, [FN115] the single common characteristic of these breeds is the quality of gameness. [FN116] Most dogs will normally withdraw when they are injured, but pit bulls are often trained to fight until death. [FN117] This trait is considered recessive, but many breeders intentionally breed for gameness and aggressiveness. [FN118] Furthermore, those breeders who supply pit bulls for dogfighting often selectively breed-out normal canine characteristics. [FN119] The result is an essentially uncontrollable animal. [FN120]

Irresponsible breeders play a large role in the changing and increasingly dangerous character of the pit bull. [FN121] Accordingly, communities must closely monitor the activities of breeders and consider adopting statutory provisions prohibiting the type of genetic engineering that results in the creation of an animal bearing little or no resemblance to the average domesticated dog. This Note contends that the conduct engaged in by breeders who "manufacture" vicious or uncontrollable pit bulls--or any other type of dog--constitutes nothing less than cruelty to animals and, as such, breeders engaged in this type of activity should be prosecuted accordingly.

2. Sellers

Although many reputable breeders and sellers exist, there are *1460 those who produce and provide pit bulls for the express purpose of dogfighting. [FN122] Sellers in this category are only concerned with making a profit and, thus, have no incentive to monitor the temperament of the animal they are providing. [FN123] Additionally, there is the risk that these individuals may be providing a dangerous animal to unsuspecting buyers as well. [FN124]

The popularity of dogfighting has led to increased demand for pit bulls and only encourages irresponsible behavior on the part of breeders and sellers. [FN125] Accordingly, law enforcement agencies must devote considerable attention to eliminating this "sport" and enforcing any existing regulations pertaining to the sale of dangerous animals. [FN126] To the extent communities do not have specific ordinances on point, this Note proposes the imposition of a statutory duty to warn on the sellers of dangerous animals similar to the manner in which section 402(A) of the Restatement imposes a duty to warn on the sellers of dangerous products. [FN127] Such a measure could be accomplished by requiring sellers to answer specific questions regarding the dog's ancestry, behavior, and temperament, and, at the very least, would serve to notify owners of the type of animal they are receiving. [FN128]

*1461 3. Owners

Unfortunately, pit bulls seem to attract a small but growing class of irresponsible owners. Some may purchase a pit bull because it is viewed by many as a "macho dog," [FN129] while others may specifically train the pit bull for dogfighting. [FN130] As a result, what may already be a dangerous animal is being placed in the hands of owners who will only enhance and encourage the dog's viciousness. [FN131]

Because the owner typically has the most control over his animal, any dangerous or vicious dog legislation must aggressively regulate the conduct of irresponsible owners. This may be accomplished either by strictly enforcing existing statutory provisions regarding the licensing and control of the animal or by enacting new provisions designed to promote responsible pet ownership.

One trend beginning to emerge in vicious dog legislation is the requirement that pet owners carry liability insurance. [FN132] Although this requirement should be applied to all dangerous or vicious dog owners--not just pit bull owners--it represents a positive step towards ensuring that victims will be compensated for injuries they suffer as the result of an attack.

It is equally important, however, that new legislation adequately addresses the problem of containing and controlling dangerous or vicious animals both on and off the owner's property. It is not sufficient merely to attach a dangerous dog to the end of a *1462 heavy chain. While the dog is on the owner's property, it must be confined in such a manner so as to prevent small children--the most frequent victims in animal attacks--from gaining access to the dog. [FN133] Whenever the dog is off the owner's property, it must be muzzled and securely restrained by a substantial leash. [FN134] Finally, any regulation with respect to the control and confinement of a dangerous dog must consider not only the need to protect other animals and people from injury but also the importance of restraining or confining the animal in a humane manner. [FN135] After all, the dog in question--however dangerous it may be--is only a product of its breeding and environment. Accordingly, lawmakers must resist the temptation to regulate the conduct of owners by enacting measures that only result in additional cruelty to the animal.

C. Recent Legislative Efforts


One of the most recent developments in animal control legislation is the Dangerous Dog Control Law (DDCL) [FN136] enacted by the General Assembly of Georgia. This bill became effective for all purposes on January 1, 1989, [FN137] and provides for the regulation and registration of both dangerous [FN138] and potentially dangerous dogs. [FN139] This legislation is not breed- specific in nature and appears to *1463 strike a balance between protecting the public and respecting the rights of dog owners.

Under the provisions of the DDCL, once a dog has been classified by an animal control officer as dangerous, or potentially dangerous, the dog's owner must be promptly notified. [FN140] Specifically, the notice must be in writing, [FN141] sent by certified mail, [FN142] and contain "a summary of the dog control officer's findings that formed the basis for the dog's classification as a dangerous or potentially dangerous dog . . . ." [FN143] The law further provides that the owner has the right to request a hearing regarding the dog's classification. [FN144] In the event the owner fails to do so, however, the animal control officer's classification of the dog becomes effective. [FN145]

Assuming the dog's owner does request a hearing, the DDCL provides that a hearing must be scheduled within thirty days of the request. [FN146] At that time, the owner has the opportunity to testify and present evidence to rebut the dog's classification. [FN147] A formal finding must be provided to the owner in writing within ten days after the conclusion of the hearing and must contain the effective date of the ruling. [FN148]

One of the most important provisions of the DDCL is that it does not require the dog's owner to automatically forfeit possession of the dog following such a determination. [FN149] Although the bill does provide that it is unlawful for the owner to continue to possess a dangerous or vicious dog without a certificate of registration, [FN150] it sets forth the procedures by which the owner may obtain the certificate and, thus, retain possession of the dog. [FN151] Specifically, a certificate of registration may be issued by the local dog control officer once it has been demonstrated that there is a proper enclosure [*1464 FN152] to confine the dog and that the owner has posted a "clearly visible warning sign." [FN153] This warning sign must also contain a symbol to warn children that there is a dangerous dog on the property. [FN154]

In addition to satisfying these requirements, the owner of a dangerous dog must obtain a $15,000 insurance policy insuring the owner against liability from personal injuries inflicted by the animal [FN155] or a $15,000 surety bond payable to any person injured by the dog. [FN156] The owner must also notify the local dog control officer within twenty-four hours if the dog is "on the loose, is unconfined, has attacked a human, has died, or has been sold or donated." [FN157] Finally, the DDCL provides that it is unlawful for a dangerous or potentially dangerous dog to be outside a proper enclosure unless "the dog is muzzled and restrained by a substantial chain or leash and is under the physical restraint of a responsible person." [FN158] Only when the owner possesses a dangerous or potentially dangerous dog and fails to comply with these provisions will the animal be confiscated. [FN159]

With respect to penalties for violating provisions of this law, the dog's owner may face a fine, imprisonment, or *1465 both--depending on the nature of the violation and the classification of the dog. [FN160] For example, the owner of a potentially dangerous dog who violates the provisions of the DDCL may be found guilty of a misdemeanor. [FN161] In addition to any other penalty that may be imposed for the particular offense, the owner may also face up to a $300 fine. [FN162]

At the other end of the spectrum, an owner who "knowingly and willfully fails to comply with the provisions of [the law and whose] dangerous dog aggressively attacks and causes severe injury or death of a human being" under circumstances [in violation of the law] is guilty of a felony. [FN163] An owner convicted under this provision of the DDCL faces a fine ranging from $5000 to $10,000 and/or a prison sentence between one and ten years. [FN164] It must be noted, however, that an owner may not be criminally liable under the DDCL for any injuries inflicted by the dog while on the owner's property. [FN165]

The Georgia DDCL represents a positive step towardsnonbreed-specific legislation designed to regulate and control all dangerous or potentially dangerous dogs. The bill respects the rights of dog owners by requiring prompt initial notification regarding the dog's classification and by providing the opportunity for a hearing to challenge the classification. The bill also-- through its registration provisions--recognizes the need to protect the community at large from a dangerous animal and to promote responsible pet ownership. Finally, the provisions regarding the confinement and restraint of the dog, both on and off the owner's property, closely parallel those suggested by HSUS and, thus, recognize the importance of controlling the animal in a humane manner. Although untested in the courts, the provisions contained in the DDCL would appear to satisfy the due process concerns discussed in section I of this Note.

Another piece of legislation designed to control dangerous dogs was recently enacted by the Maryland General Assembly. *1466 This legislation became effective on July 1, 1988, [FN166] and, as with Georgia's new law, is not breed-specific in nature.

Under the provisions of the Maryland Act, the owner of a "dangerous dog" [FN167] may not leave it "unattended on the owner's real property unless the dog is confined indoors, in a securely enclosed and locked pen, or in another structure designed to restrain the dog . . . ." [FN168] A dangerous dog is not permitted to leave the owner's real property unless it is "leashed and muzzled, or is otherwise securely restrained and muzzled." [FN169]

In the event an owner violates one of the enumerated provisions of the Act, the owner may be found guilty of a misdemeanor and fined up to $2500. [FN170] Although the Act does not specifically provide for criminal liability where a dangerous dog kills a human, the Act contains a provision which leaves open the possibility of further legislation in this area. [FN171]

One of the more unique provisions of the Act, however, is its requirement regarding the transfer of a dangerous or potentially dangerous dog. [FN172] In the event a dog falling under either of these definitions is sold or donated, the Act requires the owner to perform two specific tasks. [FN173] First, as with the DDCL, the owner must notify the local authorities of the transfer. [FN174] Additionally, the *1467 owner must notify the new owners in writing of the dog's behavior. [FN175] These provisions recognize the importance of requiring sellers to behave in a responsible manner and will diminish the possibility of placing a dangerous or vicious dog in the hands of an unsuspecting buyer. [FN176]

Finally, Ohio has also revised its animal control laws with respect to dangerous [FN177] and vicious [FN178] dogs. Section 3 of the Act states that this legislation is viewed as "an emergency measure necessary for the immediate preservation of public peace, health, and safety." [FN179] The Act further states that the number of recent attacks by vicious dogs:

illustrates the need for both statewide stringent dog control requirements and appropriate criminal sanctions in order to protect the citizens of this state from injury or death . . . caused by dangerous or vicious dogs, and to punish owners . . . who do not adequately control their dogs [thereby jeopardizing] the health, safety, and welfare of other individuals. [FN180]

Although this legislation is not designed solely to regulate the *1468 ownership and control of pit bulls, it does contain a specific provision for this breed of dog. [FN181] Under the Act, a pit bull is automatically classified as a vicious dog. [FN182] The Act further provides that the "ownership, keeping or harboring of [a pit bull constitutes] prima- facie evidence of the ownership, keeping, or harboring of a vicious dog." [FN183]

With respect to actually controlling a dangerous or vicious dog, the Act contains specific provisions regarding the animal's management both on and off the owner's property. [FN184] The Act further requires the owner of such a dog to obtain a $50,000 liability insurance policy to cover damage, bodily injury, or death caused by the dog. [FN185] The penalities for violating specific sections of the Act range from a misdemeanor to a felony conviction, depending on the nature of the violation. [FN186]

As with the Georgia and Maryland provisions, the owners of a dangerous or vicious dog under Ohio law must notify the Board of Health and Dog Warden in the event the dog is sold or otherwise transferred. [FN187] Additionally, the owner/seller is required to answer specific questions regarding the dog's temperament and behavior and must provide this information to the buyer. [FN188] As discussed *1469 previously in this Note, [FN189] these notification provisions are essential to promoting responsible behavior on the part of sellers. By incorporating such a requirement into any potential legislation, lawmakers may make a concerted effort to protect unsuspecting pet buyers.

It must be noted that these recent legislative endeavors are not aimed at responsible pet owners possessing clearly domesticated animals. Nor does this Note intend to suggest that all pet owners should be subject to the requirements discussed earlier. But where an owner has behaved in an irresponsible manner and has exposed his neighbors in the community to a dangerous or vicious dog, strict regulation regarding the continued possession of that animal is necessary.



As discussed in the introduction, some states have successfully prosecuted and convicted the owners of animals that have attacked and killed human beings. Before examining the basis for criminal liability, however, this Note offers an historical perspective by exploring the different bases for owner liability at common law.

A. Common Law Owner Liability for Wild Animals


A prerequisite to determining the appropriate level of owner liability for injuries caused by a particular animal is the classification of that animal as being either "wild" [FN190] or "domesticated." [FN191] Wild animals typically include bears, tigers, lions, elephants, monkeys, and other jungle animals, [FN192] while domestic animals traditionally include dogs, cats, sheep, horses, and cattle. [FN193]

The traditional view imposes strict liability with respect to *1470 wild animals. [FN194] The rationale behind this level of liability is that by possessing or harboring a wild animal, the owner has created an abnormal risk of harm to the community. [FN195] Therefore, even if the owner reasonably believes the animal has been domesticated to the point of losing all of its vicious propensities, the owner nevertheless takes the risk that the wild animal may unexpectedly revert back to its natural inclinations. [FN196] The extent of the owner's liability is limited, however, to injuries that result from a vicious propensity characteristic of that specific animal. [FN197] Additionally, some courts have carved out an exception to the strict liability rule when wild animals are displayed to the public in a zoo or park. [FN198]

B. Common Law Owner Liability for Domestic Animals


At early common law, it was often said that every dog was entitled to one bite [FN199] and, therefore, the dog was not considered to be dangerous or vicious until it had actually bitten someone. [FN200] *1471 This doctrine is no longer valid, however, [FN201] and although some jurisdictions still require that the owner have actual knowledge of the animal's dangerous propensities, [FN202] the prevailing rule states that it is sufficient for the owner to have reason to know of the animal's viciousness. [FN203] Accordingly, it is not necessary that the animal has previously attacked someone; it is sufficient that the animal displayed ill temperament or a tendency to attack. [FN204] Additionally, the owner is charged with the knowledge of the particular propensities that the breed of animal in question generally possesses. [FN205]

Owners of domestic animals that cause injury to others may be liable under either a strict liability or negligence theory. In order to impose strict liability on the onwer of a domestic animal, it must be proven that the animal in question had a "pre-existing vicious propensity" [FN206] that caused the victim's injury, and that the *1472 owner had "actual or constructive knowledge of that propensity." [FN207] Even if the victim fails to meet this burden of proof, however, the owner of a domestic animal may be liable under a traditional negligence theory if the owner fails to exercise reasonable care in controlling the animal or in preventing the harm caused by it. [FN208]

C. Strict Liability for Dangerous and Vicious Animals


Assuming it has been established that the owner knew or had reason to know of an animal's vicious propensity, strict liability in tort will attach. [FN209] This has been the established rule in New York since the Court of Appeals decision in Muller v. McKesson. [FN210] The rationale behind this approach, as expressed in theRestatement, [FN211] is that by knowingly keeping a vicious animal, the owner has exposed the surrounding community to an abnormal danger-- a danger that is not warranted in light of the function the animal traditionally serves in the community. [FN212] In other words, one traditionally expects a dog to provide affection and companionship.*1473 One does not, however, normally anticipate that a dog will attack and seriously injure small children or neighbors. [FN213]

This strict liability standard will generally govern attacks by dangerous or vicious animals unless it can be proven that the individual attacked, knowing of the animal's viciousness, voluntarily provoked, excited, or encountered the animal. [FN214] The individual's awareness of the animal's viciousness is a key element--it is not sufficient that the victim was merely negligent in bringing about the attack. [FN215] Accordingly, because both the plaintiff's and the defendant's awareness of a particular animal's viciousness will control the level of liability that will attach, the question becomes what constitutes sufficient notice of the animal's vicious propensity.

One of the earlier cases addressing this issue was Barger v. Jimerson. [FN216] The Colorado court noted that a "vicious propensity" encompasses much more than the animal's general inclination to attack, [FN217] and that additional factors such as the animal's "natural fierceness or disposition to mischief" [FN218] should be considered. In assessing the owner's liability, the court determined that evidence pertaining to the general disposition and savage nature of the dog was sufficient to charge the owner with notice of the dog's vicious propensity. [FN219]

This notice requirement was more recently considered in Fontecchio v. Esposito. [FN220] After defining a vicious propensity as the tendency of a dog to perform acts which might endanger other people, [FN221] the Second Department noted that the dog in question *1474 frequently growled, barked, pulled at his leash, jumped at the fence in which he was enclosed, and, on one occasion, actually broke loose from his owner and attacked a mailman's pouch. [FN222] Accordingly, the court found that these incidents constituted sufficient evidence for the jury to conclude that Esposito was aware of his animal's conduct and vicious propensities. [FN223]

In 1987, the Second Department revisited this problem in Moriano v. Schmidt. [FN224] In reversing the trial court's dismissal of the complaint, the court held that there was sufficient evidence to establish a prima facie case with respect to the dog's viciousness and the owner's knowledge of its propensities. [FN225] Specifically, evidence that the dog would growl and pull at his chain when anyone entered the yard, in addition to the defendant's warning to a neighbor to stay away from the dog, demonstrated that the owner was aware of the dog's dangerousness. [FN226]

As the South Carolina Supreme Court in Hossenlopp v. Cannon [FN227] aptly noted, either the owner of the vicious dog or the innocent victim must bear the burden of the damages and medical expenses that result from the attack. [FN228] Where the owner knows or has reason to know of the animal's vicious propensity, the application of the strict liability rule will ensure that the owner bears this burden. Even if the strict liability standard is not available, it may be possible for the injured plaintiff to recover under a traditional negligence theory. [FN229]

Finally, it must be noted that there may well be situations where an animal attacks without provocation and has failed to behave in a manner reasonably calculated to provide the owner with prior notice or warning regarding its tendency or inclination to attack. The cases discussed in this section do not stand for the proposition *1475 that an owner is automatically liable for each and every destructive act performed by his animal. Nor does this Note advocate the "wholesale" imposition of liability in every case involving an attack by a dog. But where a particular animal has behaved in a menancing fashion, and that animal's owner is aware of, but chooses to ignore, such behavior, the imposition of liability is both necessary and proper.




While the legislation and civil liability cases discussed above may be effective in many situations, there remain classes of pet owners who are not deterred by the inconvenience of special licenses and liability insurance or the threat of heavy fines and the loss of their animals. [FN230] As a result, state courts and legislatures are gradually moving towards imposing criminal liability on the owners of pets that fatally attack their victims. [FN231]

One of the first cases to impose criminal liability on the owner of a vicious animal was Munn v. State. [FN232] Munn was charged with manslaughter after his animals attacked and killed a Florida woman [FN233] and was subsequently convicted under section 782.12 of the Florida Statute. [FN234] The statute provided for owner liability with respect to attacks by mischievous animals and focussed specifically on the owner's knowledge of the animal's propensities and the precautions taken by the victim to avoid the attack. [FN235]

*1476 The record below revealed that Munn had bred and raised pit bulls for several years prior to the fatal attack. [FN236] Moreover, there was evidence that Munn's pit bulls had previously attacked people on several occasions and had frequently escaped from their pen. [FN237] In fact, on the day of the fatal attack, eight of Munn's pit bulls had escaped and attacked two other people shortly before their encounter with the decedent. [FN238] Additionally, the court noted that the victim was not trespassing at the time of the attack and could not have taken any precautions to avoid being attacked by the eight dogs. [FN239] Accordingly, in light of Munn's prior experience with these dogs, the court concluded that Munn had knowledge of his animals' vicious propensities and failed to exercise the ordinary degree of care required under the statute. [FN240] Thus, his conviction was upheld. [FN241]

Four years later, the same issue was addressed in People v. Sandgren. [FN242] In reversing the Appellate Division's dismissal of the indictment, the New York Court of Appeals considered the defendant's liability and conviction for manslaughter in the second degree under section 1052 of the New York Penal Law. [FN243] As with the Florida statute applied in Munn, [FN244] the emphasis was placed on the owner's knowledge of the animals' vicious propensities, the degree of care exercised in controlling the animals, and the precautions taken by the victim to avoid the attack. [FN245]

In Sandgren, evidence existed that the defendant's pit bull terriers had attacked others without provocation on at least four *1477 prior occasions, [FN246] and that the defendant had nevertheless failed to post signs on his property warning of the dogs. [FN247] Additionally, the evidence revealed that the defendant's dogs had been examined by the Department of Health on numerous occasions as a result of complaints that the dogs had bitten people. [FN248] As such, there was sufficient evidence to show that the defendant was well aware of his animals' vicious propensities and inclination to attack. [FN249] Furthermore, the trial court in Sandgren determined that the deceased was not a trespasser at the time of the attack, was unaware of the animals' vicious inclinations, and did not provoke the attack in any manner. [FN250] Accordingly, the conditions for liability set forth in section 1052 were met, [FN251] and the defendant's conviction of second-degree manslaughter was proper. [FN252]

Although once relatively rare, criminal prosecutions for dog attacks have gained popularity in recent years. [FN253] In the 1984 case of *1478 State v. Reynolds, [FN254] a Kansas jury found the defendant guilty of involuntary manslaughter after his animals were involved in a fatal attack. [FN255] Reynolds was given five years probation. [FN256]

A similar case arose in Turnipseed v. State, [FN257] where--for the first time--the Georgia Court of Appeals upheld the imposition of criminal liability on a pet owner for the actions of his animal. [FN258] Turnipseed was convicted of felony involuntary manslaughter under sections 16-5-3(a) [FN259] and 16-5-60 [FN260] of the Georgia Code. At the time of his conviction, Georgia did not have a law specifically prohibiting the ownership of pit bulls. [FN261] Nevertheless, the court held that there was sufficient evidence presented at trial to establish that the manner in which Turnipseed kept the dogs and his awareness of their prior attacks constituted "reckless conduct" under section 16-5-60. [FN262]

During the course of the three-day trial, the evidence revealed that Turnipseed had owned and raised pit bulls for a number of years prior to the fatal attack on Billy Gordon. [FN263] Additionally, his own testimony disclosed that he was aware that pit bulls "hurt kids and stuff" [FN264] and that his neighbors, the police, and local animal control officers had registered complaints about his dogs. [FN265] Moreover, Turnipseed was aware that the dogs had discovered how to escape from the house and believed the animals were capable of *1479 jumping the fence surrounding his yard. [FN266] Finally, the defendant admitted that his dogs had in the past chased children in the neighborhood and that two of his dogs had been killed by police officers in self-defense. [FN267]

In affirming the trial court's conviction, the court noted that "the evidence [produced at trial] was sufficient to enable any rational trier of fact to find Turnipseed guilty of felony involuntary manslaughter . . . based on reckless conduct . . . beyond a reasonable doubt." [FN268] Turnipseed is currently serving a five-year sentence and is subject to an additional five- year probation period. [FN269]

More recently, a Rochester, New York man was charged with second-degree manslaughter after his pit bull, Pete, attacked a man in a neighborhood park. [FN270] Robert Barbarita was bitten by Pete during a Fourth of July fireworks display in 1987. [FN271] Barbarita died two weeks after the attack when a blood clot traveled from the bite in his legs to his lungs. [FN272]

Although the case was scheduled for trial this past summer, Pete's owner, Mark Parise, plead guilty to second-degree assault and began serving a one-year sentence in October, 1988. [FN273] Parise's plea represented "the first time a Monroe County resident [had] been convicted of assault as the result of [the] actions [of his] animal." [FN274]

Although most prosecutions for attacks by vicious animals have been brought under manslaughter charges, a California resident is currently facing second- degree murder charges stemming from a fatal pit bull attack on two-and-a-half- year-old James *1480 Soto. [FN275] The defendant, Michael Berry, had originally been charged with violations of Penal Code sections 192 [FN276] and 399 [FN277] --involuntary manslaughter and death from mischievous animals--but the charge was amended following the discovery of attack-training equipment in the defendant's home. [FN278]

The second-degree murder charge was filed "based on the argument that the defendant could be held liable for reckless conduct in the same way a drunk driver can be held [liable] on murder charges." [FN279] The defendant subsequently filed a "motion to dismiss the murder charge and reduce the case to manslaughter." [FN280] Last May, the trial court denied defendant's motion [FN281] and, on June 1, 1988, the California Court of Appeal denied the defendant's petition *1481 for a writ of prohibition and request to stay the trial. [FN282] On June 17th, the California Supreme Court granted a stay to determine whether or not to hear the defendant's appeal. [FN283] People v. Berry is still pending. [FN284]

As the courts continue to criminally prosecute pet owners for the actions of their animals, [FN285] state legislatures are also considering bills that will provide for criminal liability in dog attack cases. [FN286] A proposed provision under consideration in New York, for example, provides for a five year jail sentence and a $25,000 fine for the owner of a pet who kills a person. [FN287] The legislation is not breed-specific in nature and would not preclude a victim of a dog attack from bringing a civil action. [FN288]

A similar bill under consideration in Michigan would allow an owner to be charged with involuntary manslaughter if his animal causes the death of another person. [FN289] If the animal only causes serious bodily injury, the owner could face a maximum ninety-day jail sentence and a $500 fine. [FN290] The bill is similarly not breed-specific *1482 and is aimed at controlling attacks by all vicious animals. [FN291]



When faced with the number and severity of attacks involving pit bulls, it may appear that banning this animal or imposing burdensome requirements on pit bull owners is the quickest and easiest solution to eliminating the problem of attacks by dangerous dogs. Such a "solution," however, ignores three fundamental issues. First, pit bulls themselves are not the problem--it is the people responsible for their breeding and training who have, in some cases, created an essentially uncontrollable animal. Accordingly, any law that attempts to regulate human behavior by punishing or regulating the animal is misdirected and ineffective. Secondly, by implementing provisions designed to control only this particular type of dog, breed-specific legislation misses the mark and fails to address the overall problem of controlling all dangerous or vicious dogs--regardless of breed. Regulating pit bulls may be a "stop gap" measure, but lawmakers' efforts in animal control legislation must not--and need not--be so narrowly focussed. Finally, the need for restrictive animal control legislation must always consider and be balanced against the constitutional rights of animal owners. Whatever the scope of the proferred legislation, its enactment must be constitutionally permissible.

Any new dangerous or vicious animal control legislation must take into consideration three separate and distinct factors--protecting public health and safety, protecting the constitutional rights afforded pet owners, and respecting the need for all animals to be treated in a humane manner. Communities should follow the suggestions offered by organizations such as HSUS and NIMLO with respect to assessing the needs present in individual communities and consulting with local animal control and law enforcement officials. As a starting point, proposed legislation must base the classification of a particular dog as dangerous or vicious on non-breed-specific factors. Additionally, the legislation must satisfy due process concerns by providing affected owners with prompt notice and the opportunity for a hearing to challenge the classification. Finally, the owner of a dangerous or vicious dog must be given adequate time to comply with the provisions of a *1483 given statute with respect to the confinement and control of the animal, and these measures must be accomplished in a humane manner. Recent legislative efforts in this area--such as the enactment of the DDCL--appear to recognize the need for strict, nonbreed-specific, and constitutionally permissible regulation in this area.

As for the imposition of criminal liability, the Munn, Sandgren, Turnipseed, and Berry cases illustrate the need for aggressive prosecutions in this area. In each of these cases, the owner involved was well aware of his dog's vicious behavior and nature. Furthermore, with the exception of the defendant in Berry, each owner knew that his particular dog had attacked people without provocation on a number of occasions and yet chose not to post warning signs or adequately confine the animal. By failing to do so, each defendant exposed the members of his community to an unreasonable danger.

Although this Note does not suggest holding every dog owner criminally liable for the actions of his animal, it does contend that criminal prosecutions are both appropriate and necessary where the owner of a dangerous or vicious animal has behaved in a criminally negligent or reckless manner. States must consider incorporating criminal liability provisions into any existing or new animal control legislation.