WEST VIRGINIA -- The parents of a 3-year-old girl who they say was seriously injured from an attack by another family's dog, cannot seek the animal's death through a civil suit, West Virginia Supreme Court justices ruled recently.
Freddie Jenkins and Elisha Jenkins filed the suit in Grant County Magistrate Court against Ron Durham and Rhonda Durham seeking to have the Durhams' dog killed after a September 2010 attack that left the young girl severely injured.
The Jenkinses allege the attack took place at a birthday party at the Durhams' house when the Jenkinses' daughter, Felicity, walked away from the party toward the Durhams' two dogs, a Great Dane and a Rotweiler mix.
The Nov. 9 state Supreme Court opinion notes that testimony varies on whether both dogs were involved in the attack or if the Great Dane was involved at all.
The Jenkinses say their daughter suffered "extensive and serious injuries to her head, waist, thighs and back, which required hospitalization and surgical repair," the opinion notes.
According to the opinion, the Durhams euthanized the Great Dane mix but not the other dog.
The Jenkinses brought the suit against the Durhams seeking to have the other dog euthanized. The Durhams argued that state code doesn't allow for a person to seek the destruction of a dog through a civil suit.
However, the Grant County Circuit Court judge disagreed, denying their motion to dismiss and affirming the magistrate's order to euthanize the dog.
State Supreme Court justices determined the circuit court "erred by denying the Durhams' motion to dismiss." The opinion states that the Jenkinses could not seek the dog's destruction in a private cause of action.
Instead, justices continued, "the authority to order a dog killed pursuant to (state code) stems solely from a criminal proceeding." Law enforcement did not conduct a formal investigation of the incident, the opinion notes.
"While we believe that our statutory law compels this result, we nevertheless are greatly troubled by this incident and the circumstances giving rise to the incident which resulted in the horror the Jenkinses' daughter endured both physically and psychologically," the opinion states.
The Jenkinses brought their suit under a section of code that states: "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."
Justices said the language of this section "does not explicitly provide a private cause of action."
This section, justices later wrote, "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. … 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."
In her dissenting opinion, Justice Margaret Workman said she "adamantly" disagreed with the majority's decision.
"In reaching its conclusion, I believe the majority wholly ignored the Legislature's intent in enacting W.Va. Code Section 19-20-20, improperly framed the issue and, in so doing, leapt to several unsupported conclusions."
She said the opinion "mischaracterized" the Jenkinses action saying they did not want to establish liability for damages but to have the dog destroyed, which she says is "plainly permitted by the statute upon proper showing that he was dangerous."
"This remarkably unsubstantiated conclusion indicates that only the prosecuting attorney may seek the destruction of a dangerous or vicious dog and then only if he is first successful in obtaining a criminal conviction of its owner. WV Code does not state or even suggest any such thing. It is also a thoroughly barbaric suggestion that the Legislature intended to have an animal put to death as punishment of the animal's owner."
Workman noted the owners did not think the other dog participated in the attack, but she said testimony showed that "the two dogs were playing ‘tug-of-war' with the child."
"The facts of this case are horrific," she wrote. "A 3-year-old girl was seriously injured when she wandered into an area where two dogs were penned. The trial court concluded that the evidence revealed that both dogs participated in mauling the young girl, resulting in her scalp being ripped from her head from behind her bangs, half way down the back of her head and from ear to ear, as well as infliction of other serious bite wounds."
(State Journal - Nov 14, 2012)
