Q.What steps should the defendants have taken to lessen the aggressive tendencies of Bane and Hera?
A. Assuming that Noel and Knoller knew of these tendencies (consistently denied by the defendants), there were many options open to the defendants. Hence, their failure to act on these options addresses their negligence.
Surprisingly, the prosecution did not rely on expert testimony from an animal behaviorist to opine about available options. Instead, Hammer just used common sense. His chief argument was that the defendants never consistently muzzled their dogs. Surely, if Bane had been muzzled when Knoller took him to the roof for toilet purposes, Whipple would be alive today.
On the other hand, the position of the defense was that Knoller felt she had no need to muzzle Bane at that time knowing that she only had a short distance to travel with Bane (the stairs to the rooftop were only steps from her apartment door) and that she did not anticipate encountering people in the hallway, on the stairs or on the roof in the short period of time she was out with Bane. Certainly, Whipple’s appearance in the hallway in front of her door just at the time when Knoller was returning to her own apartment, came as a surprise to Knoller (and probably to Whipple as well). Whipple had just returned from grocery shopping. Had the timing between Knoller and Whipple been slightly different, the incident would have not occurred. It is for this reason that the defense characterizes the incident as an “accident”.
Certainly there were other steps the defendants could have taken to gain better control over Bane and Hera. Hammer occasionally alluded to them in his opening and closing arguments. For example, the value of obedience training, the use of a shock collar, and possibly controlling the dogs with a choke chain rather than a harness. No expert testimony was used in regard to these points, however. Despite this shortcoming, Hammer nevertheless was probably sucessful in getting the jury to belive that they were viable options that should have been used by the defendants.