Mauling Victim’s Partner Can Sue

A San Francisco trial judge ruled Friday that the lesbian partner of a woman mauled by dogs can take her wrongful-death lawsuit to trial even though the couple were not married.

Superior Court Judge A. James Robertson II agreed with Sharon Smith’s lawyer that California law has created an insurmountable barrier for her by not allowing same-sex couples to marry and, thus, precluding them from receiving benefits given to married couples.

Smith had sued attorneys Marjorie Knoller and her husband, Robert Noel, owners of the two large presa canario dogs that killed her partner, Diane Whipple, in a Jan. 26 attack. As the 110-pound Whipple, a college lacrosse coach, was scrambling to unlock her door, she was mauled by the dogs, each weighing more than 100 pounds.

“This is the single most important victory in the eight years that I have worked here,” said Shannon Minter, senior staff attorney for the National Center for Lesbian Rights in San Francisco. “This is just one of those truly ground-breaking decisions that sends such an important message that gay, lesbian relationships are important, real and are entitled to respect.”

Minter said the decision underscores the importance of a bill pending in the Legislature that would, among other things, amend the law to give same-sex partners the right to file a wrongful-death suit. The bill, AB 25, written by Assemblywoman Carole Migden (D-San Francisco), was approved by the Senate Judiciary Committee on a 4-2 vote July 10.

Scott Lively, president of the Pro-Family Law Center in Sacramento, said Friday that he opposes the judge’s decision.

“The power to enact legislation is vested in the legislative branch,” Lively said. “The judicial branch is limited in its role. The problem I have here is the judge is taking upon himself the legislative role of establishing public policy, in this case recognizing de facto domestic partner status as equivalent to marriage.” Lively also said the ruling might weaken the rights of close relatives.

“It sets a tremendous bad precedent in the law where family members are going to have to compete with the homosexual partners for who gets the right to sue and the rights to recover the damages from the lawsuit,” he said. “This is a very shortsighted decision.”

Smith, who was Whipple’s partner for seven years, was aware that California law prohibits unmarried couples from suing those they hold responsible for a partner’s death. Smith said the couple would have legally married if state law recognized homosexual unions.

Nonetheless, Smith, 35, a regional vice president at Charles Schwab, filed suit against Knoller and Noel on March 12.