“One free bite” common law premise is overturned in Ohio & Texas

From ANIMAL PEOPLE, September 2009:
COLUMBUS–Ruling against the centuries-old “one free bite”
presumption of common law, the Ohio Supreme Court on August 26,
2009 upheld the constitutionality of a Youngstown ordinance that
defines a vicious dog as any dog who has “a propensity, tendency or
disposition to attack, to cause injury to or otherwise endanger the
safety of human beings or other domestic animals,” or any dog who
“attacks a human being or another domestic animal without
provocation.”
The Youngstown ordinance breaks from common law in that it
does not require a prior history of dangerous behavior to define a
dog as vicious. The Youngstown ordinance itself is not
breed-specific, but it implements an Ohio state law which defines
pit bull terriers and other fighting breeds as inherently vicious.
The Ohio Supreme Court upheld the state law in 1991.

The case producing the August 2009 verdict “involved an
incident in April 2007,” recalled Reginald Field of the Cleveland
Plain Dealer, “in which two unattended Italian mastiff/Cane Corso
dogs attacked and bit David Roch of Youngstown and his small dog,
who were walking in a city park. One of the large dogs was owned by
resident Jammie Traylor, who was later convicted under the ordinance
and fined, sentenced to 90 days in jail, ordered to pay restitution
to Roch and ordered to own ‘nothing bigger than a Chihuahua’ as a
condition of probation.”
The Ohio 7th Court of Appeals reversed Traylor’s conviction,
accepting his argument that the Youngstown ordinance violated his
right to due process because it held his dogs to be vicious before
they had actually attacked anyone.
“Traylor’s dogs, unprovoked, attacked Roch and his dog while
the dogs were off their property,” Ohio Supreme Court Justice Evelyn
Lundberg Stratton wrote for the majority in the 5-2 split verdict.
“Traylor argues that an owner cannot know that his dog is vicious
until he is convicted under the ordinance. To hold otherwise,
however, is to permit each dog ‘one free bite,’ a result that would
clearly leave society at risk. A responsibility of dog ownership is
to maintain and control the animal. This ordinance requires no more
and no less, and, therefore, it does not violate procedural due
process.”
Justice Paul Pfeifer in a dissenting opinion held out for the
traditional common law definition. “Traylor’s dog was not ‘vicious’
until the moment he bit a human, at which point it was too late for
Traylor to restrain his dog,” Pfeifer contended.
Responded Stratton, “Youngstown’s ordinance “does not
classify or label dogs as vicious. Dogs are rendered vicious under
the ordinance by their propensity to attack or by their attack, and
dog owners are merely required to keep such dogs confined.”
Pfeifer is noted in the annals of dog law for writing the
majority opinion in a July 2008 Ohio Supreme Court verdict that
upheld the Columbus barking dog ordinance.
Of that case, Pfeifer wrote, “By a seven-to-zero vote we
concluded that the Columbus barking dog ordinance is not
unconstitutionally vague, because it sets forth sufficient standards
to place a person of ordinary intelligence on notice of what conduct
the ordinance prohibits.”

Texas case

The Texas legislature in 2007 “eliminated the ‘one free bite’
law,” recalled Judith Pannebaker of the Bandera County Courier,
because it “prevented owners from being charged” with a criminal
offense for reckless dog-keeping behavior “unless their dog had been
involved in a previous attack.”
Under the new Texas law, owners of dogs who attack without
provocation may be charged with a felony if the attack occurs off the
dog owner’s property and results in serious bodily injury or death.
Among the first court tests of the new law will be the
pending trial of Rosalia Clarice Sclafani, 46, of Bandera.
Sclafani possessed as many as 17 dogs on October 11, 2008, when
three of her Rottweilers allegedly mauled passer-by Nina Truax, 69.
In a related preliminary case Sclafani was convicted on
August 26, 2009 “of fabricating evidence to alter and affect an
on-going criminal investigation, a second-degree felony,” wrote
Pannebaker. “The felony indictment stemmed from Sclafani producing a
falsified rabies vaccination certificate for one of the dogs involved
in the alleged attack.”
Assistant prosecutor Steven Wadsworth asked that Sclafani be
given the maximum sentence of 20 years in prison, as a previously
convicted felon. Judge Keith Williams deferred sentencing until
October.
A felony conviction for the dog attack would be Sclafani’s
third strike, resulting in a mandatory life sentence.
“In 1983, as Rose Galvan, Sclafani was convicted of injury
to her own child in Williamson County was sentenced to 50 years
confinement. She was paroled in 1989 and remains on probation,”
recalled Pannebaker.
The victim, Christopher Paul Galvan, died at the age of six
months, dehydrated and malnourished, suffering from cuts, bruises,
and ulcerated sores. Forensic pathologist Linda Norton of Dallas
testified that, “He was neglected to death.” His father, Paul
Galvan, also drew a 50-year prison term.
Then-Bastrop County district attorney Neal Pfeiffer told Mark
Edgar of the Dallas Morning News that the Galvans had another baby
boy who died about 18 months before Christopher.
The parents claimed both deaths were sudden and unexpected.
The first child was buried without forensic investigation.