Dog bite case makes it to Texas Supreme Court
January 20, 2018 | 74° | Check Traffic

New York Times

Dog bite case makes it to Texas Supreme Court

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AUSTIN, Texas >> It’s not often that a dog bite case makes it all the way to the Texas Supreme Court, but this one involves a bomb-sniffing dog trained in the Texas Hill Country and deployed to help military operations in Afghanistan.

Lawyers on both sides warn that the outcome could have far-reaching effects on the military and those who help fight our wars.

Kallie was a Belgian malinois assigned to Camp Mike Spann, an Army base conducting combat operations against the Taliban. Her job was to locate the top killer of troops in Afghanistan — roadside bombs and other improvised explosive devices.

LaTasha Freeman was a civilian employee making $100,000 a year as an administrative clerk at the base.

In November 2011, Kallie escaped from her kennel and jumped Freeman, who said the dog knocked her down, gripped her left arm and shook violently. There was no bleeding or outward sign of injury, but Freeman was eventually diagnosed with complex regional pain syndrome, a nerve injury that left her unable to work and declared “completely disabled” by the U.S. Social Security Administration.

Freeman sued, seeking more than $1 million from two companies — Hill Country Dog Center, which trained Kallie and her handler at its Bandera County location, and American K-9 Detection Services, a contractor that provides the U.S. military with working dogs to hunt bombs.

A district judge in Bandera County tossed out Freeman’s lawsuit in 2014, but a state appeals court overturned that ruling and reinstated her complaint.

Now the companies have asked the Texas Supreme Court to dismiss the lawsuit once and for all.

COMBAT ZONE EXCEPTION

At its core, this is a classic dog bite case involving an alleged victim seeking compensation for an injury.

But Wallace Jefferson, a lawyer for American K-9, argued that Freeman’s lawsuit should be voided because the courts have limited jurisdiction over injuries that occur in combat zones.

“Camp Mike Spann was a forward operating base situated in Afghanistan on the front lines of American hostilities. Its operations were designed to crush the Taliban,” Jefferson told the Supreme Court during oral arguments last month.

American K-9, like other military contractors, was a critical component of the Army’s war effort, particularly because its dogs proved so effective at finding improvised explosive devices, “one of the most dangerous threats” faced by U.S. and allied troops, Jefferson said.

What’s more, he said, state courts are barred from evaluating the military’s wartime decisions — even for something as minor as the way Kallie’s kennel was built.

“This is more than a dog-bite case; it asks whether a Bandera County jury can tell the executive how best to defend the United States of America,” Jefferson told the court in a pre-argument brief.

But Chad Flores, Freeman’s lawyer, warned that American K-9 is asking the court to go too far.

The military relies heavily on contractors and civilians like Freeman to prosecute wars, and sometimes courts are required to address “very serious wrongdoing” that can include sexual assault or negligence that can lead to injuries or death, Flores said.

“We acknowledge the important interests on the other side of the case. The president needs to be able to run the wars the way the president thinks the wars need to be run, and military contractors play an important role in that,” he told the court.

But the “thousands of good Texans who do these jobs” must have at least some access to the courts, Flores argued.

“If they win this little dog bite case, it’s going to be very difficult — if not impossible — to let those most serious cases go forward because you can’t really sustain their rule without a categorical judgment that says one ounce of military involvement is going to kill the entire case,” Flores said.

NO DOG IN THIS HUNT

Hill Country Dog Center, which has trained dogs for use by the police and military since 1994, has a more straightforward claim.

The company argued that it must be dropped from Freeman’s lawsuit because it merely trained Kallie and the dog’s handler, and any liability for the actions of a dog belongs to its owner or handler.

“We sold the dog to American K-9. It was no longer our dog,” the company’s lawyer, Debbie McClure, told the court. “We had no control over the enclosure for Kallie. We had no control over Kallie at the time of the incident.”

American K-9, a Florida company, blames the Army for Kallie’s escape, arguing that the dog was kept in an Army-built kennel that did not meet the military’s own construction requirements.

If Freeman’s lawsuit were allowed, a jury would have to decide whether the Army negligently designed that kennel, and that would violate rules restricting court inquiries into wartime military decisions, Jefferson said.

In addition, he said, federal law bars lawsuits against government contractors that, like American K-9, are directly involved in combat-related activities under Army command.

Freeman’s lawyer urged the court to uphold an opinion by the Corpus Christi-based 13th Court of Appeals, which ruled in 2015 that American K-9 had not adequately proved that the Army kennel design was at fault or refuted Freeman’s claim that Kallie and her handler were not properly trained.

Those questions should be answered in court, not in pretrial pleadings, Flores said.

“A jury can look at this case and see if it’s about a bad kennel or a badly trained dog,” he said. “I think the jury can … decide this case without questioning sensitive judgments” by the military.

The Supreme Court is expected to rule on the case by late June or early July.

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