A Montgomery County Common Pleas judge is allowing a lawsuit springing from a fatal dog mauling to proceed against the county in part on the question of the destruction of county records relevant to the case.
Since 2015, the estate of Klonda Richey has sued former county dog warden Mark Kumpf and county commissioners, alleging that Kumpf failed in his duty to enforce existing laws and did not seek to obtain a dangerous dog designation that may have given Richey some protections from a neighbor’s dogs.
But the ruling issued last week from Judge Mary Wiseman touches on a new wrinkle in the case.
On the question of whether county records relevant to the lawsuit were intentionally destroyed or allowed to be destroyed, Wiseman wrote in her Aug. 30 ruling that it was a “genuine issue of material fact,” meaning a trial will have to decide the matter.
“Although it is established that the destruction of documents in the ordinary course of business is not considered willful, given the county’s failure to preserve records relating to pending litigation as required by the policy, the court finds that there remains a genuine issue of material fact whether the truck logs were destroyed in the usual course of business or were willfully destroyed,” Wiseman wrote.
Thaddeus Hoffmeister, a University of Dayton School of Law professor, said the ruling means the question of whether records were destroyed will have to be litigated before a jury or in a trial before a judge.
But Hoffmeister also said that once county government loses a ruling like this, it likely will have a reason to seek a resolution or settlement outside a trial.
“They don’t want this to go to a trial,” Hoffmeister said.
Animal Resource Center truck logs from 2013 and 2014 — in the period just preceding Richey’s death — had been destroyed in 2017, according to a handwritten list produced by ARC supervisor Robert Sexton in a March 2018 deposition. Those logs tracked center officer responses to calls and complaints about dogs.
“There’s no dispute that they (the records) are relevant,” said attorney Chris Jenkins, who represents the Richey estate. “There is no dispute that they were destroyed. There’s really no dispute that the destruction was wrong, that it shouldn’t have happened.”
He added: “The county could face liability for this horrific death.”
Collin Showe, assistant county prosecutor, referred questions to Greg Flanagan, a spokesman for the prosecutor’s office. A county government spokeswoman said the county would have no comment.
The suit goes back to a 2014 fatal dog mauling in Dayton. Richey was attacked and killed by two mixed mastiffs in her 31 E. Bruce Ave. driveway.
Richey, then 57, was found dead outside in sub-freezing temperatures on the morning of Feb. 7, 2014. When police responded to the scene, nearby dogs charged them and were shot and killed.
If the county had designated the dogs as “dangerous,” protections could have included a higher fee for her neighbors to register the dogs and a requirement for them to provide evidence of additional insurance, her lawsuit has argued.
In an updating of the lawsuit in 2018, Richey’s estate sought damages from the county Animal Resource Center based on the alleged destruction of potential evidence in the form of the county records, according to court filings.
Kumpf and the Animal Resource Center “willfully and with malicious purpose destroyed highly relevant public records with intent to disrupt plaintiff’s existing lawsuit against defendant Mark Kumpf,” a complaint updated by Richey’s estate and filed in August 2018 argued.
Wiseman granted in part Kumpf’s motion for summary judgment solely with respect to the spoliation claim against him. A “spoliation” claim alleges the intentional destruction or hiding of evidence.
However, the court denied a defense motion for summary judgment on all remaining claims, including a spoliation claim against county commissioners.
Though Wiseman wrote that attorneys for the Richey estate have not tied the logs’ destruction to Kumpf, she also wrote:
“The court also finds that BCC (Board of County Commissioners) was fully aware of plaintiff’s (the Richey estate’s) claims and had knowledge of the existence of this litigation prior to the destruction of the truck logs. BCC was put on notice of plaintiff’s wrongful death and personal injury claims in 2015, when it was named as a defendant in plaintiff’s original complaint,” Wiseman wrote.
Added the judge: “Additionally, ARC (Animal Resource Center) was in receipt of plaintiff’s notice to preserve records in March 2015, wherein plaintiff requested ARC’s responses to all calls involving Ms. Richey and/or the subject dogs.”
The county fired Kumpf in December 2018.
In May 2015, the couple whose dogs killed Richey were sentenced to perform hundreds of hours of community service.
Andrew Nason, 30, and Julie Custer, 27, were sentenced in Dayton Municipal Court after both pleaded no contest and were each found guilty of two misdemeanor counts of failure to control dogs.
A judge sentenced Nason to 150 days in jail, 500 hours of community service, a $500 fine and court costs. Custer was sentenced to 90 days in jail, 480 hours of community service, a $200 fine and court costs.
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