Civil Cases to Focus on Liability in Dog Attack

From his office in Redwood City, attorney Rick Williams is keeping close tabs on the Los Angeles trial of two San Francisco lawyers charged in the fatal dog mauling of their neighbor.

When the criminal case of dog owners Marjorie Knoller and Robert Noel is resolved, Williams will have to defend his clients--the owners of the apartment building where tenant Diane Whipple was killed--against wrongful death civil suits filed by the victim’s partner and mother.

The civil cases arising from the fatal mauling raise a difficult question: Who should be financially responsible for dog attacks? That answer could affect dog owners, property owners and the companies that insure them. Since Whipple’s death, many landlords have taken steps to ensure tenant safety by controlling the pets in their buildings. But rental laws in San Francisco make it difficult to evict tenants with problem pets.

To win involuntary manslaughter convictions in the ongoing criminal case, prosecutors must prove beyond a reasonable doubt that the defendants acted in a criminally negligent manner.

To earn a civil judgment against a building owner, the plaintiff must prove by a preponderance of the evidence that the dog was dangerous, the landlord knew so and could have either evicted the tenant or required the tenant to remove the dog.

“It’s extremely difficult because the victim or survivor has to prove what was in the landlord’s mind,” said Los Angeles attorney Kenneth Phillips, who represents dog attack victims in criminal and civil cases. “It’s not enough that they should have known. It has to be proven that they actually knew.”

The civil suit filed by Sharon Smith, Whipple’s partner for seven years, alleges that owners Rudolph Koppl and Annette Pucci-Koppl and their management company, Marina Green Properties, had a “shocking, willful and conscious disregard for the obvious danger that [the dogs] posed to the safety of others,” and that Whipple’s death was foreseeable and preventable.

Though only surviving spouses, parents and children historically have been entitled to sue for wrongful death in California, Smith helped get legislation passed last year to extend those rights to same-sex partners.

Whipple was attacked Jan. 26, 2001, by two Presa Canario dogs in the hallway outside her upscale San Francisco apartment. Knoller and Noel are charged with involuntary manslaughter and keeping a mischievous dog in connection with their neighbor’s death. Knoller also faces a second-degree murder charge and could be sentenced to 15 years to life in state prison if convicted. Noel faces a maximum sentence of four years.

Knoller, 46, and Noel, 60, also have been sued for wrongful death. That civil case against the couple will be easier for Whipple’s survivors to prove, because state law says dog owners are liable for bites unless the victim was trespassing or provoked the attack.

The impact of Whipple’s mauling reverberated throughout traditionally pet-friendly San Francisco in the last year. Complaints about dog bites to police and animal control rose dramatically, more dog owners enrolled their pets in training classes and more landlords attended seminars on how to deal with problem animals, according to animal control officials.

Apartment owners statewide have the right to ban dogs from their buildings, except for guide or service dogs for the disabled. About 75% of rental units in San Francisco forbid dogs, according to Rent Tech, a rental referral service that lists most of the city’s vacancies. The percentage rose slightly following Whipple’s death.

“It is becoming more and more difficult for the good, big dog to find a place in San Francisco to live,” said Kat Brown, deputy director of San Francisco Animal Care and Control, which runs the city and county municipal shelter.

Janan New, director of the San Francisco Apartment Assn., said she provides landlords with a rental agreement for pets that requires tenants to keep their pets under control and to cover any damages or injuries caused by the pets.

In most California cities, a landlord can evict tenants who violate such an agreement. But in San Francisco, the rental laws make it nearly impossible for landlords to do so, because having a potentially dangerous pet does not qualify as a specific cause for eviction, New said.

Nearly all apartment building owners purchase insurance policies that cover damages from dog attacks, said Pete Moraga, spokesman for the Insurance Information Network of California. And every year, insurance companies pay out $310 million nationwide because of dog bites.

There are 15 to 20 dog bite fatalities every year nationwide and more than 300,000 bites send the victims to hospitals, attorney Phillips said.

Since Whipple’s killing, more insurance companies have been excluding from their policies certain breeds of dogs, such as pit bulls and Rottweilers, or specific dogs with a history of violence, Moraga said. “Whenever you have a very high-profile case, like this one, it definitely has an impact on the way insurance companies look at [dog liability],” he said.

The Koppl family has insurance for the apartment building where Whipple lived and was attacked, Williams said. But he declined to discuss the specifics of his clients’ policy.

Michael Cardoza, who represents Smith, said the landlords’ policy is for $2 million to $4 million. “There is insurance here, and we plan to go after it,” he said. Cardoza said he doesn’t know whether Noel and Knoller had renter’s insurance, but he said they are not the “deep pockets” in this case.

If the civil cases against the San Francisco landlords do go to trial, attorneys said Whipple’s death could elicit sympathy among jurors and result in multimillion-dollar verdicts against the landlords. The landlords and the insurance company could be responsible for paying Whipple’s survivors. The insurance company may not renew the policy or may raise the rates if there is a large verdict or settlement against the landlords, Moraga said.

The case that set the law on landlord liability stemmed from a dog attack in 1971 in Stanislaus County. A 5-year-old girl was seriously injured after being bitten by a large German shepherd at a friend’s house. There were “Beware of Dog” signs posted on the yard and the dog twice had bitten people. The friend’s parents were renting the house, so the girl’s family sued the owners.

A state appellate court ruled that the landlord could be held liable because he knew about the dog’s dangerous nature and he could have evicted the family or ordered them to get rid of the dog.

In a later Riverside County case, a cable installer was working at a rental house when a German shepherd jumped on him, causing the man to fall and break his back. Even though the landlord knew that the tenant at the house had a dog named Thunder, he had never heard any complaints about the dog and did not know it was dangerous. The appellate court ruled in the landlord’s favor.

In the criminal trial resulting from Whipple’s death, several residents of the upscale, six-story building told jurors about their own frightening encounters with Bane and Hera. They said the dogs lunged, bit and charged.

Only 1 Witness Reported the Dogs’ Behavior

But only one witness said he reported the dogs’ behavior to the apartment manager, in a letter that mostly complained about the dogs making too much noise.

The lack of complaints benefits the landlords’ case, Phillips said.

“This whole community has shown up at court to talk about the dogs in hindsight,” he said. “But there were no police reports, no animal control reports, no insurance claims, no lawsuits and no letters to the landlord.”

Williams said his clients could not have anticipated the fatal attack on Whipple. “If all these people who testified they were afraid of the dogs had been that scared, why didn’t they say something to someone?” he said. “It’s an unfortunate situation as can be, but my clients aren’t responsible for it. They didn’t know the dogs were dangerous or posed a threat to anyone.”

Smith’s attorney, Cardoza, said the landlords should never have permitted the massive Presa Canario dogs into the building in the first place.

“Why do you allow two horse-type dogs into an 800-square-foot apartment?” he said. “They are walking time bombs. It’s not fair to the animals ... it’s not fair to the public and it’s not fair especially to the tenants.”

Ronald H. Rouda, who represents the victim’s mother, Penny Whipple-Kelly, said the fact that the dogs weighed more than 100 pounds each should have alerted the landlords to the potential for harm. Rouda said the apartment manager should have confronted Knoller and Noel and asked them to put muzzles or choke chains on the dogs.

Smith, who has set up a foundation in Whipple’s name, said any money she receives from her lawsuit will help fund it. Whipple-Kelly said her goal is to prevent what happened to her daughter from happening to anyone else.

“My daughter had a reasonable expectation to be safe in her own apartment,” she said. “Maybe other apartment owners will pay more attention to what’s going on in their buildings.”