Dog bite cases in Hawaii multiply
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By Ken Kobayashi
Advertiser Courts Writer
By Ken Kobayashi
The number of reported dog bites in Hawai'i has steadily increased in recent years to more than 1,000 annually, raising the potential that more lawsuits will be filed against dog owners.
Dog bite lawsuits have generated awards and out-of-court settlements in Hawai'i of more than $350,000.
A pending suit in Kaua'i courts by relatives of a 1-year-old boy killed by a dog could result in an award of more than $1 million.
The parents' lawyers will try to establish what many lawyers say underlie dog-bite cases: There are no bad dogs, just people whose mistreatment of their animals makes them vicious.
"They created a dangerous dog by the inhumane treatment," said Susan Marshall, lawyer for the boy's Kaua'i family.
Nationally, dogs bite more than 4.7 million people with about a dozen deaths and 800,000 seeking medical attention each year, according to the Centers for Disease Control and Prevention.
In Hawai'i, 1,179 were treated last year, up from 966 in 2003, the state Department of Health reports. Deaths are rare here. In the past 16 years, three people, including the Kaua'i boy, were killed, the department said.
Most bites occurred on O'ahu, where there are about 225,000 dogs, according to the Hawaiian Humane Society. But the rate of bites among residents is higher on Kaua'i and the Big Island, according to statistics compiled by epidemiologist Dan Galanis of the Department of Health.
Because the judiciary doesn't segregate dog-bite lawsuits, it is difficult to determine the percentage of dog-bite lawsuits among 653 non-motor vehicle Personal Injury suits in Circuit Court filed in the last fiscal year. But the suits are not uncommon.
Robert Kawamura, a Honolulu lawyer who has represented bite victims and dog owners, estimates the suits are roughly 3 percent of Personal Injury cases.
Not all states handle dog bite suits the same. Legal commentators estimate that the law in about 18 states includes the principle of the "one-free-bite" rule. That means that owners can't be held liable unless it's proven they knew the dog was dangerous or had bitten someone previously. It provides protection from liability for the dog's first bite.
In a landmark court decision, the Hawai'i Intermediate Court of Appeals rejected the rule in 1986.
While the court rejected the "one-free-bite" rule, it also rejected the "strict liability" concept that the owner will always be held responsible for any bites. That concept was rejected because it could mean homeowners could be held responsible for their dogs biting a trespasser, the court reasoned.
The court noted that although the law imposes "strict liability" for the owners of animals known by their species or nature to be dangerous, dogs are not included in that category because "dogs are not dangerous, wild or vicious by species or nature."
In interpreting the law, the court also said the bite victim does not have to show the owner knew that the dog was vicious.
That decision meant the test is whether the dog owner was negligent in controlling the dog or preventing it from biting people.
"I think it's a good compromise," Kawamura said.
Honolulu attorney John Price, who represents dog owners and believes dog-bite suits are increasing, recalls one case he said that illustrates the thorny issues involved.
He said a woman went into a business that had a mascot dog, which was asleep. The woman got down on the floor and said "nice puppy," waking and startling the dog. The dog nipped her on the chin, and the woman had to be treated in the emergency room and received one or two stitches.
Price said he asked her, "Did you ever hear the expression, 'Let sleeping dogs lie?'"
Although he believed they might have prevailed, they decided to settle rather than incur more costs in defending the case.
The woman received $5,000.
MORE LAWSUITS SEEN
Richard Turbin, a Honolulu lawyer who has represented dog-bite victims, also believes the lawsuits are increasing. One reason, he said, is the increased use of pit bulls and other dogs for not only protection, but to keep neighbors and others away from illicit drug operations. "A lot of people keep dogs as weapons," he said.
Also, some owners feel their dogs should have as much freedom as humans and ignore leash laws, allowing dogs to roam free at beaches and parks, Turbin said.
Lawyers said many dog-bite claims are settled before they hit the courts and even then, most — like other types of Personal Injury lawsuits — are settled before trial or resolved through court-mandated arbitration proceedings.
A key factor, like Price's example, depends on the severity of the injury and whether the dog owner has insurance that would allow for recovery even if the injury is serious.
Even though the Kaua'i case involves a death, the same legal principles will guide that case.
Catherine and Damon Liddle are suing Buenaventura Ednilao over the death of their son, Trusten, on Feb. 21, 2004.
Although criminal prosecutions for dog bites are rare here, Ednilao was prosecuted under a Kaua'i ordinance of negligently failing to control a dangerous dog, a petty misdemeanor. He pleaded no contest and received a $500 fine and six months probation. His no contest plea is not admissible in the civil trial.
The lawsuit does not specify the amount of money the family is seeking and their lawyers are not saying how much they will request. But, Kawamura estimated, based on the death and his experience with dog-bite cases, that the award could be $1.5 million if the family wins.
Kawamura's client agreed to a $350,000 out-of-court settlement with a woman whose finger was bitten off when she was trying to fend off an intruding dog, which was fighting with her own dog on her property.
Turbin said he handled a case that resulted in a higher settlement, but could not disclose the amount.
In cases that were resolved through either court-mandated arbitration or jury verdicts, the highest known award is $271,019 for a woman who was bitten on her lip and chin in 1991 by a Doberman pinscher at Kapi'olani Park. The dog belonged to a neighbor.
Trusten was mauled by a male beagle-mix dog while the parents were on their Moloa'a farm lot adjacent to Ednilao's lot, according to Marshall, the family's lawyer.
Dennis O'Connor, a Honolulu lawyer representing Ednilao, said his client is remorseful, but O'Connor said he doesn't think Ednilao is responsible because he had his dog chained on his property.
"Unfortunately, the child from next door wandered within the range of the dog, and the dog's purpose was to protect the property, and the dog did protect the property," O'Connor said.
He said the parents let the child get away from their supervision.
"We believe they should take some responsibility, too," he said.
But Marshall said the dog was on a 22-foot chain and wandered 10 feet onto the Liddle property when he attacked Trusten. She also said the parents were nearby and immediately tried to rescue their son.
"If the parents were holding his hand, they could not have prevented the attack," she said. "It happened in a split second."
Marshall said the parents are still devastated, but feel a responsibility to pursue the suit.
"Unless the public is made aware of the dangerousness of dogs kept on a chain and treated inhumanely, there won't be any change in the behavior of dog owners," she said.
She said the dog was an unneutered male that was neglected and chained the entire seven years of his life.
"The dog wasn't bad," she said. "It was just a situation created by a dog owner who created a lethal weapon."
The trial is scheduled for July next year.
Reach Ken Kobayashi at email@example.com.
Correction: A headline in a previous version of this story incorrectly said that lawsuits against dog owners have increased. The number of reported dog bites has increased, not the number of lawsuits. Also, leashed dogs are permitted on the medial strip at Kapi‘olani Park. A box in the story implied dogs are completely prohibited at the park.