Sad Case of Yet Another Shelter Dog+her offspring Killing a Kid
MARTINEZ — A Concord man faces up to 10 years in prison if convicted of involuntary manslaughter and child endangerment in the fatal mauling of his 2-year-old step-grandson by three pet pit bull dogs a prosecutor said the man knew to be vicious. Steven Hayashi, 55, waived his right for his case to be heard by a jury, and Contra Costa Superior Court Judge John Kennedy will decide his guilt or innocence after a trial that began Wednesday and will continue on a sporadic schedule.
“At issue is whether Hayashi should have foreseen the attack that killed toddler Jacob Bisbee and whether he is responsible for Jacob and his 4-year-old brother being unsupervised the July 22, 2010, morning Jacob wandered into an unlocked garage where the dogs were……”
What do we think? What jury instruction is being used? Gross negligence? It’s definitely negligent to us, AND if the dog or dogs had ever acted territorial or aggressive, snarling, whale eye-ing, etc.– that’s even worse. Dogs are dogs and to some extent, their behavior can be predictable– so an owner who KNEW dog behavior would never leave 5 dogs in a garage with kids unsupervised at the house. Get an idea of how complicated this might be…
California Civil Jury Instructions (CACI)
425. “Gross Negligence” Explained
Gross negligence is the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.
A person can be grossly negligent by acting or by failing to act.
New April 2008
Directions for Use
Give this instruction if a particular statute that is at issue in the case creates a distinction based on a standard of gross negligence. (See, e.g., Gov. Code, § 831.7(c)(5) [immunity for public entity or employee to liability to participant in or spectator to hazardous recreational activity does not apply if act of gross negligence is proximate cause of injury].) Courts generally resort to this definition if gross negligence is at issue under a statute. (See, e.g., Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960, 971 [4 Cal.Rptr.3d 340].)
Give this instruction with CACI No 400, Negligence—Essential Factual Elements, but modify that instruction to refer to gross negligence.
This instruction may also be given if case law has created a distinction between gross and ordinary negligence. For example, under the doctrine of express assumption of risk, a signed waiver of liability may release liability for ordinary negligence only, not for gross negligence. (See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095]; see also CACI No. 451, Affırmative Defense—Contractual Assumption of Risk.)
Sources and Authority
- “ ‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘ “ ‘want of even scant care’ ” ’ or ‘ “ ‘an extreme departure from the ordinary standard of conduct.’”’” (City of Santa Barbara, supra, 41 Cal.4th at p. 754, internal citations omitted.)
- “By contrast, ‘wanton’ or ‘reckless’ misconduct (or ‘ “willful and wanton negligence” ’) describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result.” (City of Santa Barbara, supra, 41 Cal.4th at p. 754, fn. 4, internal citations omitted.)
- “California does not recognize a distinct cause of action for ‘gross negligence’ independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120 Cal.Rptr.3d 90].)
- “Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [122 Cal.Rptr.3d 22], internal citation omitted.)
- “The theory that there are degrees of negligence has been generally criticized by legal writers, but a distinction has been made in this state between ordinary and gross negligence. Gross negligence has been said to mean the want of even scant care or an extreme departure from the ordinary standard of conduct.” (Van Meter v. Bent Constr. Co. (1956) 46 Cal.2d 588, 594 [297 P.2d 644], internal citation omitted.)
- “Numerous California cases have discussed the doctrine of gross negligence. Invariably these cases have turned upon an interpretation of a statute which has used the words ‘gross negligence’ in the text.” (Cont’l Ins. Co. v. Am. Prot. Indus. (1987) 197 Cal.App.3d 322, 329 [242 Cal.Rptr. 784].)
- “[P]ublic policy generally precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care. Applying that general rule here, we hold that an agreement purporting to release liability for future gross negligence committed against a developmentally disabled child who participates in a recreational camp designed for the needs of such children violates public policy and is unenforceable.” (City of Santa Barbara, supra, 41 Cal.4th at p. 777, original italics.)
- “ ‘Prosser on Torts (1941) page 260, also cited by the Van Meter court for its definition of gross negligence, reads as follows: “Gross Negligence. This is very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. Many courts, dissatisfied with a term so devoid of all real content, have interpreted it as requiring wilful misconduct, or recklessness, or such utter lack of all care as will be evidence of either—sometimes on the ground that this must have been the purpose of the legislature. But most courts have considered that ‘gross negligence’ falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. So far as it has any accepted meaning, it is merely an extreme departure from the ordinary standard of care.”’” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358 [257 Cal.Rptr. 356], original italics, internal citations omitted.)
- “California courts require a showing of ‘the want of even scant care or an extreme departure from the ordinary standard of conduct’ in order to establish gross negligence. Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence but not always.” (Decker, supra, 209 Cal.App.3d at p. 358, internal citations omitted.)
- “The Legislature has enacted numerous statutes . . . which provide immunity to persons providing emergency assistance except when there is gross negligence. (See Bus. & Prof. Code, § 2727.5 [immunity for licensed nurse who in good faith renders emergency care at the scene of an emergency occurring outside the place and course of nurse’s employment unless the nurse is grossly negligent]; Bus. & Prof. Code, § 2395.5 [immunity for a licensed physician who serves on-call in a hospital emergency room who in good faith renders emergency obstetrical services unless the physician was grossly negligent, reckless, or committed willful misconduct]; Bus. & Prof. Code, § 2398 [immunity for licensed physician who in good faith and without compensation renders voluntary emergency medical assistance to a participant in a community college or high school athletic event for an injury suffered in the course of that event unless the physician was grossly negligent]; Bus. & Prof. Code, § 3706 [immunity for certified respiratory therapist who in good faith renders emergency care at the scene of an emergency occurring outside the place and course of employment unless the respiratory therapist was grossly negligent]; Bus. & Prof. Code, § 4840.6 [immunity for a registered animal health technician who in good faith renders emergency animal health care at the scene of an emergency unless the animal health technician was grossly negligent]; Civ. Code, § 1714.2 [immunity to a person who has completed a basic cardiopulmonary resuscitation course for cardiopulmonary resuscitation and emergency cardiac care who in good faith renders emergency cardiopulmonary resuscitation at the scene of an emergency unless the individual was grossly negligent]; Health & Saf. Code, § 1799.105 [immunity for poison control center personnel who in good faith provide emergency information and advice unless they are grossly negligent]; Health & Saf. Code, § 1799.106 [immunity for a firefighter, police officer or other law enforcement officer who in good faith renders emergency medical services at the scene of an emergency unless the officer was grossly negligent]; Health & Saf. Code, § 1799.107 [immunity for public entity and emergency rescue personnel acting in good faith within the scope of their employment unless they were grossly negligent].)” (Decker, supra, 209 Cal.App.3d at pp. 356—357.)
- “The jury here was instructed: ‘It is the duty of one who undertakes to perform the services of a police officer or paramedic to have the knowledge and skills ordinarily possessed and to exercise the care and skill ordinarily used in like cases by police officers or paramedics in the same or similar locality and under similar circumstances. A failure to perform such duty is negligence. [para.] The standard to be applied in this case is gross negligence. The term gross negligence means the failure to provide even scant care or an extreme departure from the ordinary standard of conduct.’ ” (Wright v. City of L.A. (1990) 219 Cal.App.3d 318, 343 [268 Cal.Rptr. 309] [construing “gross negligence” under Health & Saf. Code, § 1799.106, which provides that a police officer or paramedic who renders emergency medical services at the scene of an emergency shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or not performed in good faith].)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 278
Advising and Defending Corporate Directors and Officers (Cont.Ed.Bar) § 3.13
1 Levy et al., California Torts, Ch. 1, General Principles of Liability, § 1.01 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, §§ 380.10, 380.171 (Matthew Bender)
PD: We hate to say it, but one should NOT take an unknown dog from a shelter which then has puppies [pregnancy unknown] and then you keep 2 of those puppies, and then negligently allow 1 of those dogs to impregnate the mother dog, and you keep 2 of those pups? Had we been talking about some small breed 5lb dogs, or some wildly highly desirable difficult to obtain breed, we could see that ALL of such dogs could have been sold without difficulty. Or if the main dog had been a known, sound temperament dog with a known lineage, it might (but not for sure) be different.
But to keep unknown breed/temperament dogs with stigma already attached breedwise— indicates AR thinking, not sound thinking. The bulls have had to suffer mostly due to groups like HSUS– but let’s face it– even when you know your dogs, you do NOT just take 5 bulls and throw them in a garage, then go and play tennis while the 2 grandkids are there with no one awake supervising them? That is sheer folly. It may be a huge lapse in judgment. But when you have a PACK of dogs– any breed of dogs, with 50lb or even 40lb dogs— you don’t leave 5 of them together in a garage and leave kids there unsupervised.
We have seen 3 dogs in a pen, observe dogs they did not know, outside their pen. Then the dogs IN the pen start fighting with each other, which then resulted in 2 of the dogs OUTSIDE the pen, who knew each other for 7 years, and which were not bully dogs, to start going at each other. So the pack mentality of dogs is not something one should ever, ever, ever discount. It’s bad enough with two dogs that get into an altercation, and anything over that is simply to be avoided at all costs.
Having been involved in the rescuing of dogs for many years, one observes a lot of stuff. and not all of the stuff is pleasant. So trust us, don’t EVER put dogs together in a room or kennel or car, etc, and expect that everything will be just fine. Even if they all know each other, everything will not necessarily be fine. It only takes one time for something to happen to understand this, especially if the dogs are not 5lb. For that matter, rescuers with 5 dogs in living room have been fatally injured.
ARs are partly to blame because they believe in often saving the worst dogs. That also should be avoided. Never save the worst dogs, the sickest dogs or any dogs that cost an arm and a leg to keep. A rescue’s job is to get homes, not be a hospital for wayward dogs. And since “non profit, rescue and shelter” dogs are the only dogs that will be “sold” in the forseeable future, the future is bleak unless we change the laws.