Wednesday, February 18, 2004

Colorado: Judge hears testimony in Garrett Carothers dog mauling case

COLORADO -- The family of a Pagosa Springs boy mauled by two dogs (a pit bull and a Rottweiler Labrador mix) says sheriff's deputies were slow to respond to a report of loose dogs half an hour before the December 2002 attack.

But attorneys for the Archuleta County Sheriff's Department and one of its deputies said in court Monday that their clients were immune to lawsuits, had no duty to protect anyone from an attack and were not willful or wanton in the way they handled the attack on Garrett Carothers.

The judge in the case, which was brought by Garrett's family, said he expects to rule in about two weeks whether the family can include the Sheriff's Department and Deputy Tommy Gaskins in the lawsuit. The trial is scheduled to begin May 24.

District Judge Gregory Lyman unlocked the La Plata County Courthouse on Presidents Day just for Monday's hearing.

Lyman and attorneys from Denver, Grand Junction and Colorado Springs met on the holiday because everyone involved wants the quickest resolution possible for Garrett, said Kathy Chaney, Garrett's attorney.

"You all did a good job of making me less certain," Lyman told the attorneys after almost two hours of oral arguments.

Gary Doehling, of Grand Junction, represents the Sheriff's Department. Gordon Vaughan, of Colorado Springs, represents Gaskins.

Garrett was 8 at the time of the attack. On Monday, he wore a cowboy hat to cover the still-healing scar on his scalp. He arrived for court wearing a brown leather flight jacket and black jeans. Garrett sat quietly with his attorney; his mother, Cindy; and his father, Rick.

For much of the hearing, Garrett appeared to be listening to the debate. As the arguments grew more and more legally technical, he leaned against his mother and appeared to sleep, cowboy hat on his lap.

Garrett, a third-grader at Pagosa Springs Elementary School, has no hair on 75 percent of his scalp. The scalp is shiny, taut and scarred from the attack and ongoing medical treatment. On Monday, his scalp was protected by a bandage at the crown. Garrett was also wounded on his face and body. Mercy Medical Center surgeons had fought to save his life.

"There are real people involved," Vaughan told Lyman, his back to Garrett. "There are real people who are hurt. There are real parents. ... There are real people who are being sued."

The Carothers family filed suit in March against the Pagosa Lakes Property Owners Association for not having an animal control officer on staff. The suit also accused the Archuleta County Sheriff's Department and Gaskins of not responding quickly enough.

Chaney repeatedly said in court Monday that Gaskins, who was four miles away, continued attending to personal business instead of responding to a call about loose dogs in the subdivision where Garrett was attacked.

The Archuleta County Board of Commissioners was recently added to the lawsuit. The owners of the dogs - Sandra Schultz and her son, David Martinez - were dropped after their homeowners insurance paid the Carothers family $100,000. Garrett's medical expenses are estimated by his attorney at in excess of $250,000.

Governments usually are exempt in civil cases, but Chaney has argued the Carothers case is different, and on Monday she told Lyman part of the difference is that the sheriff's department voluntarily assumed the duty to control dogs in the subdivision where Garrett was attacked.

The property owners' association had asked the sheriff's office to take on the role of dog catcher, and the sheriff's office agreed, Chaney said. "If the sheriff's department would have said No, we can't,' the (association) could have taken different measures," she said.

But Doehling said the sheriff wasn't responsible. "What duty in general does the sheriff owe?" he said. "Does the sheriff have a duty to protect people against vicious dogs? ... The answer is no.'"

One element of the case is an allegation that Gaskins was dispatched to a report of two dogs loose in the subdivision almost half an hour before Garrett was mauled, but did not arrive until after the attack.

Vaughan said there is no fundamental requirement for deputies to protect people in Colorado unless there is a special relationship, such as an inmate in custody, a patient in a mental institution, or a suspect in custody.

Chaney disagreed. "Of course they have duties," she argued. "They say right on their Web site they have a duty."

On their Web site the department says: "The Archuleta County Sheriff's Department is statutorily responsible for many things. First and foremost is the protection of the citizens of Archuleta County."

Both dog owners in the case were charged with owning dangerous dogs. Schultz was convicted and sentenced to four months in the Archuleta County Jail. The charge against Martinez was dropped because of the state's "one-bite rule," which requires prosecutors to prove a pet owner knew the dog was dangerous.

Rep. Mark Larson, R-Cortez, is seeking to allow prosecutors to file criminal charges against dog owners regardless of whether an animal has bitten anyone before. The Carothers family has lobbied to have legislation involving dog attacks toughened. The family also supports a campaign to ban pit bulls in the state.

(The Durango Herald - Feb 17, 2004)