Was dog at fault or pool employee?

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By Patrick Yost

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For more than an hour dog owners Jeff Davis and his wife Carrie Christie argued that the city of Madison’s determination that their dog should be deemed ‘dangerous’ after it bit a pool company employee was based on both falsehoods and shaky legal reasoning.

In total, the hearing lasted more than two hours after opposing council Joe Spurlin counter argued Davis and Christie’s statements to buttress his client, Gary Roberts, claim that the couple’s Boxer dog bit him in the hand and leg when he entered the couple’s fenced in back yard to examine a pool.

In between the prepared statements council also heard input from Madison Police Chief Bill Ashburn. In the end, nothing was resolved.

The full council was given what city attorney Joe Reitman said is an 85 page investigation into the attack. Council was tasked with reviewing the investigation and then re-convening on August 15 at 5:30 p.m.  to resolve the matter and question Madison Animal Control Officer Crystal Berisko and Madison Code Enforcement Officer Phillip Malcom if necessary.

At stake is whether or not the Davis/Christie dog is to be deemed ‘dangerous.’ If so, a host of precautionary measures for public safety must be completed by the couple to retain the dog. If not, the dog can remain as is at the house that sits next door to the Morgan County Primary School,.

The Davis/ Christie couple argued that Roberts entered their back yard, fenced enclosure without permission and as such was basically trespassing. Christie told the council that she had spoken with an All In One Pool representative Joanie Roland days before the May 3 attack to arrange for someone to measure the family’s pool for a new liner. Christie said she repeatedly told Roland to call prior to coming to the house because, she said, she keeps two Boxer dogs in the back yard. When Roland called to inform Christie that Roberts had been bitten… “I was stunned. It made no sense to me. How did my dog attack your employee. I could not understand how this could happen.”

Christie said Roberts and Roland were at fault for the attack because they did not establish an appointment time or call before arriving. By walking onto the couple’s East Avenue property, Roberts effectively violated the family’s right to privacy, she said. “She sent someone who was not authorized,” Christie said of Roland. “Their was no consent for Mr. Roberts to be on our property.”

Roberts’ attorney Spurlin discounted the couple’s argument. Spurlin said his client entered the back yard to examine the pool and noticed someone peering out from blinds in the house. Moments later the back door was opened and the dogs attacked. He also said Roberts had implied consent to enter the property.

“She (Christie) told them to come look at my pool and that’s what they did. They had the authority to look at the pool.”

He argued that trespassing or a violation of the couples “curtilage,” a definition of personal property boundaries and rights, was not relevant in this case. “None of these apply.”

He also took issue with claims by the couple that their dogs had interacted with large groups of people during church and social gatherings without incident. Spurlin said records show that on two occasions the family was cited by the city for the dogs running at large. Davis, in rebuttal, said both occasions were anomalies caused, in part, by an emergency evacuation the family took during a fireplace event.

Spurlin also alleged that one of the dogs had previously bitten a veterinarian during treatment.

The couple, early in their argument, said they initially acquired dogs because they had been inundated with drug-addled vagrants coming onto the property to beg for money. Christie said she discovered a person on one occasion sleeping in the family’s barn and that her husband chased a peeping tom away from the family home.

Spurlin discounted those notions, too. “We have sat here for one hour and listened to them talk about measuring sticks and peeping toms,” he said. “Those dogs were not in the back yard. They couldn’t have been. He (Roberts) would have never gotten to the gate.”

Spurlin also said that Code Officer Malcom went to the house after the incident and could not approach the fence because of the dogs. “That’s just impossible it happened that way,” Spurlin argued.

Madison Police Chief Bill Ashburn said Malcom went to the family’s home as part of a criminal investigation the Madison Police Department launched, in part, because of the allegation that someone in the house released the dogs on Roberts after he had entered the yard. That investigation, Ashburn said, failed to provide enough substance for the allegation and was dropped, as was an investigation by the police department into the allegation that Roberts had criminally trespassed on the couple’s property.

Ashburn urged the council to question both Berisko and Malcom before they make a decision. “I think y’all need to hear what they have to say,” he said. “Our job as a police department and animal control department is to keep the public safe. “

“My concern is very much for those children next door. If one of those dogs would bite one of those children it could very likely kill them,” he said.

Council Member Chris Hodges questioned Reitman on the relevancy of the statements by both sides. “it basically comes down to whether or not it’s a trespass or not,” she said.

“I think you’ll find the answers somewhere in the document,” Reitman said.

Council Member Joe Diletto questioned Roberts directly. “If you go to a fine people’s house to look at their pool and see a sign that says ‘Do not enter, aggressive dog’ what do you do?

“I would not enter,” Roberts said.

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