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Overview of Pleadings and Briefs

Karstan Lovorn (updated by Rebecca F. Wisch)



Publish Date:
November 2004 (updated March 2006)
Place of Publication: Animal Legal & Historical Center
Printable Version

Overview of Pleadings and Briefs

I.  Veterinarian Malpractice

II.  “Dangerous” Animal

III.  Restrictions on Animals

IV.  Animal Torts/Animal Cruelty

A.  Intentional Torts and Damages Issues

B.  Negligence

C.  Private Actions for Cruelty and/or Neglect

D.  Nuisance

V.  Estate Planning and Pet Custody Issues

A.  Estate Planning

B.  Custody Agreements Involving Pets

VI.  Federal Actions under the Administrative Procedures Act

VII.  Sample Voir Dire Questions

VIII.  Vegan Rights

 

I.  Veterinarian Malpractice

A.  Iris Lewis v. Al DiDonna, Pharmacist - In this case, the plaintiff brought her dog of nine years to a veterinarian and was given a prescription for an anti-inflammatory drug called Feldene to treat the dog’s condition.  The prescription was filled at defendant-pharmacist’s pharmacy, where it was mislabeled, “1 pill twice daily” instead of one pill every other day  Plaintiff’s dog subsequently became ill and ultimately suffered renal damage that led to his death.  Plaintiff then commenced an action including causes of action for consumer fraud, negligence, and loss of companionship and also sought punitive damages.

Available Documents:

B.  Rappaport v. McElroy - In this California case, plaintiff sued a veterinarian for giving his exotic pet (a Serval cat), a flea treatment known to be toxic to cats.  Plaintiff’s complaint alleged several causes of action, including veterinary malpractice, trespass to chattel, gross negligence, intentional and/or spoliation of evidence, willful injury to animals, and conversion.  Plaintiff contended that it is well known in the field, and indicated by the manufacturer of Spotton, that the drug should not be used on felines.  Plaintiff sought damages in the amount of $25,000, which included lost wages, the commercial value of the cat, and loss of companionship, among other things.

Available Documents:

C.  Stein v. Prince - Complaint filed against veterinarian for malpractice and other torts after dog died while being boarded at veterinary hospital.  All the plaintiffs raise four counts against defendant (breach of contract, negligence, malpractice, and bailment) for the deaths of their dogs.  From each set of facts, the various plaintiffs allege that their dogs were in good health prior to boarding their dogs at defendant’s facility, and that each dog subsequently died in its cage.

 Available Documents:

D.  Stephanski v. Wimpy - Complaint against a veterinarian for malpractice.  Plaintiff's dog died after being neutered.  Plaintiff sought non-economic damages.

Available Documents:

E.  Krcmar v. Kirkland - Veterinarian abused a dog during treatment, resulting in the dog's death.  The veterinarian then tried to cover up his actions by improper disposal of body. This is a malpractice suit for damages.  This is also a good example of what is known in malpractice cases as "conspiracy of silence."

Available Documents:

F.  Hair v. Quail Corners Animal Hospital - Veterinarian negligently treated show dog after a hunter shot her.  In addition, another vet then left a needle inside the dog.  The veterinarian subsequently failed to take the needle out, which caused the dog's death. 

Available Documents:

G.  Clark v. Cardinal Animal Care - This is a complaint for veterinary malpractice.  The cat had been checked in for a routine flea treatment.  The cat ended up with a severe problem, about which the vet lied to the owner.  The vet then performed an unauthorized surgery on the cat, which caused the cat's death.

Available Documents:

H.  Medeiros v. Lloyd - The Board of Registration in Veterinary Medicine had sanctioned Dr. Lloyd for improper treatment of a dog, "Pooch," for heartworms.  This is a suit for damages against Dr. Lloyd.  The briefs are drafted by none other than one of the best-known names in Animal Law, Steven M. Wise.

Available Documents:

II.  “Dangerous” Animal

A.  Williams v. Orange County Animal Control - "Boo," a bullmastiff (large breed of dog), knocked down a child who had walked into his (the dog's) yard.  The child accused dog of biting him.  The Orange County Animal Control Department ordered that Boo be euthanized as a "vicious" and "dangerous" animal.  The owners filed a Writ of Mandamus to delay the killing of the dog until their challenge could be heard in court. 

Available Documents:

B.  Betts v. City of Longbeach - This is a petition demanding an administrative hearing before the euthanizing of a dog.

Available Documents:

C.  Ortega Administrative Hearing - This is a trial brief for an administrative hearing to determine whether dog, "Rocky," was "vicious" or "dangerous."  Rocky was normally a very friendly dog. 

Available Documents:

D.  Wilson v. City of St. Louis - Petition to prevent City from euthanizing a Pit Bull named "Max" as "dangerous."  This action concerns the release of Max who was impounded and classified as “dangerous” without a chance for his owner to argue against the action.  Plaintiff Malane Wilson filed a petition for a preliminary and permanent injunction, a petition for declaratory judgment, and a petition for replevin against the City of St. Louis and the Animal Regulation Center, among others.  The Circuit Court for the City of St. Louis found that the plaintiff would suffer irreparable harm if the preliminary injunction was not granted.  Thus, the City was enjoined from killing or otherwise harming Max.  They were also ordered to release Max, remove his “dangerous” designation, and have him instead classified as “potentially dangerous.”

Available Documents:

E.  Phillips v. Director - "Missy," a black lab was known to have a bad habit of biting children.  She was seized by the San Luis Obispo County Department of Animal Regulation who then ordered her to be euthanized.  Missy's owners, the Phillips' demanded that she receive an administrative hearing.  The director of the Department denied this request and the Phillips's sued for a hearing.  The Phillips had to file a Petition for Writ of Mandamus to halt the euthanasia of Missy while they challenged the order in court. Their challenge was upheld in the Court of Appeals.

Available Documents:

III.  Restrictions on the Possession of Animals

A.  Nahrstedt v. Lakeside - Natore Nahrstedt had two cats, a violation of her Housing Covenant in the condominium she lived in.  She was charged progressively larger fees every month for having these cats.  Natore challenged the validity of the "no pets" rule as well as the method of enforcement.

Available Documents:

B.  Sheldon Park Tenants v. ACHA - The Allegheny Public Housing Authority decided to enforce it's "no pets" rule after years of unenforcement.  This is a brief in arbitration. The tenants won.  Includes a very interesting discussion of depression as a disability.

Available Documents:

IV.  Animal Torts/Animal Cruelty

A.  Intentional Torts and Damages Issues

1.  American Society for the Prevention of Cruelty to Animals et al v. Ringling Brothers, et al - This case involves the Ringling Brothers circus company’s mistreatment of elephants brought by the ASPCA.  Plaintiffs alleged that the alleged routine beating, chaining, and other mistreatment amounted to an unlawful taking of an endangered species under the Endangered Species Act (ESA).  Judge rejects defendants’ motion to dismiss and order the case to proceed.

Available Documents:

Amended Order (07/30/2003) (pdf file 80 KB)

2.  Taylor v. Burgess, et al.- Taylor v. Burgess is an excellent case to get an idea of the full chronology of a civil case.  Additionally, it is a landmark case in Kentucky.  Currently, Kentucky is one of the only state that allows non-economic damages for the loss of an animal.  Judy Taylor, a disabled woman, owned two horses.  As her muscular dystrophy progressed, she became unable to care for her beloved horses.  Judy placed her horses with a couple who promised to care for them in exchange for the opportunity to ride them (common in the horse trade).  The couple immediately sold the horses to the slaughter industry.  Judy Taylor successfully sued for non-economic damages.

Available Documents:

3.  Ammon v. Welty - This is an Amicus Brief about non-economic damages in case where warden shot a family dog.

Available Documents:

4.  Brock v. Rowe - Stan Brock, a former NFL star, is suing is neighbor for shooting his two dogs with a bow and arrow.  This is an opposition to a motion to dismiss on a claim of emotional distress for loss of family pets.  It was successful.  As of this writing (2002), the case is still pending.

Available Documents:

5.  Julie Marie Grizzel v. James William Hickey, d/b/a S & S Farms and S.S. Farms, Inc. aka S.S. Farms Linn county, Inc. and S&S Farms Linn County, Inc. - The plaintiff in this Oregon case brought an action alleging negligence and intentional infliction of emotional distress against the defendant, who was a licensed animal dealer known to sell animals to research facilities.  While plaintiff's dog was secure in her backyard, two other individuals seized her and transported her to defendant Hickey.  Upon delivery of plaintiff’s dog to defendant, defendant allegedly stated that My Girl was too small for research and subsequently shot the dog and buried her remains.  With regard to damages, plaintiff noted the manner in which the dog was killed by Hickey and suggested that a household pet is generally irreplaceable to the owner unlike other forms of personal property.  Further, the great indifference and circumstances of the case justified the imposition of punitive damages here.

Available Documents:

6.   Lee v. Cook - Amicus Curi brief on why suit for wrongful death of a dog can include emotional damages.

Available Documents:

7.  Lockett v. Hill - Defendant's pit bulls killed plaintiff's cat while she watched.  This is an appellate brief about non-economic damages.

Available Documents:

8.  Harrington v. Hovanec - This California complaint for damages raises five causes of action:  (1) gross negligence; (2) trespass to chattel; (3) conversion; (4) intentional infliction of emotional distress; and (5) violation of California Civil Code Section 3340 (related to damage to animals as property).  The lawsuit arose from the negligent and/or intentional shooting of plaintiff's dog by defendant in May of 2004.  According to the complaint, plaintiff's dog was shot at least thirteen times by defendant's two different guns.

Available Documents:

9. Sandle v. Davis - This complaint arose from the intentional shooting of plaintiff's dog by defendant.  Plaintiff was on his property pruning a tree when defendant shot plaintiff's dog, who was in the street at the time approximately three feet away from defendant.  As a result of the shooting, plaintiff's dog is paralyzed in the back half of his body and suffers from bladder and bowel difficulties.  Three causes of action were raised in the complaint:  (1) intentional infliction of emotional distress; (2) conversion; and (3) violation of California Civil Code of Procedure Section 3340 (relating to damage to animals).

Available Documents:

10.  Seagrave v. Atzet - This California complaint arose from the shooting of plaintiff's golden retriever dog.  Plaintiff's dog was secure in the backyard which was bordered by a fence.  According to the complaint, defendant intentionally used a high-powered pellet rifle and shot the dog by positioning the rifle over or through the fence.  This injury resulted in plaintiff's dog's death.  The complaint raised three causes of action:  (1) intentional infliction of emotional distress; (2) conversion; and (3) violation of California Civil Code of Procedure Section 3340 (related to damages to animals).

Available Documents:

 

B.  Negligence

1.  Wysotski v. Air Canada (California Complaint, 2002) - Airline mishandled shipment of pet cat and, as a result, the container was damaged and the cat escaped. Complaint on negligence and other grounds for $2.5 million in damages. 

2.  Shumate v. Mouraux - In this California case, the plaintiff sought damages after her companion, a nine-year-old purebred cocker spaniel, suffered terminal injuries after staying at a “dog spa.”   Plaintiff’s causes of action focused on negligence claims, arguing that Daisy’s injuries could not have occurred without negligence by someone and that she was in the exclusive control of defendants when they occurred.  (Plaintiff also raised a violation of business practices claim under California code.)  What is significant about this complaint is that it raises a modified res ipsa loquitur argument in a bailment action. 

Available Documents:

3.  Tracy Skaggs v. Wal-Mart Stores East, Inc. and 21st Century Pets - This case involves a suit by a dog owner against Wal-Mart and a company called 21st Century Pets after an indoor pet boundary fence and transmitter caused fatal injuries to plaintiff’s dog.  The Plaintiff alleged that the product was so defective as to create causes of action based on strict liability, negligence, breach of implied and express warranties, fraud, and negligent misrepresentation.  Among the most contested issue was that of damages; plaintiff here sought both compensatory and punitive damages. 

Available Documents:

4. Ing v. American Airlines - This California complaint arose from the death of plaintiff's dog while in American Airlines' care.  The dog flew from New York to San Francisco in the cargo area.  Upon arrival, the dog was alive, but in physical distress.  American Airline employees allegedly told plaintiff a veterinarian was coming to see the dog, but the veterinarian never arrived.  An employee also allegedly joked on the phone with his manager about the situation while trying to find out the protocol for dealing with the dog.  Plaintiff raised eleven causes of action, including gross negligence, conversion, and intentional infliction of emotional distress, among others.

Complaint for Damages  (3/29/2006) (pdf file 211.44 KB).

C.  Private Actions for Cruelty and/or Neglect

1.  Hammer v. AKC - Plaintiff, the owner of a Brittany Spaniel dog with an undocked tail, sought to enter his dog into AKC competitions.  However, AKC standards stated that any tail substantially over four inches long would be "severely penalized."  Plaintiff contended the practice of docking a dog’s tail (which oftentimes occurs without aneastesia or even under the proper care of a veterinarian) consituted an act of cruelty in violation of Agriculture and Markets Section 353 and was an arbitrary and capricious discriminatory standard.  Plaintiff sought both declaratory relief declaring that the practice is illegal and discriminatory and injunctive relief to enjoin the practice form being applied in New York and elsewhere.

Available Documents:

2.  Center for Animal Law and Advocacy v. Bryon F. Maggard - On March 17, 2002, the defendant beat his dog, Sadie, with a skillet, tried to hang her with an electrical cord, and then set her on fire.  The Center, which initiates civil litigation on behalf of companion animals and their guardians in an attempt to elevate the legal status of such animals, sued for compensatory damages in the amount of $25,000 to cover costs of Sadie’s veterinary treatment and rehabilitation, and asked the court to prohibit defendant from owning any animals in the future.

Available Documents:

3.  Putnam County Humane Society v. Marjorie Duso d/b/a/ Oakwood Kennels, Putnam County Florida - The Putnam County (Florida) Humane Society brought an action seeking permanent custody of 41 dogs from Marjorie Duso, the operator of a kennel.  The PCHS is a not-for-profit corporation that is devoted to the prevention of cruelty to animals pursuant to Florida law.  Under that authority, the PCHS seized and took custody of the dogs after an investigation led to the discovery of neglect and mistreatment of the dogs at the kennel.   The Putnam County Court granted the PCHS custody of the dogs (except for Ms. Duso’s personal pet dog, which the PCHS was given the right to check on at least once a month).  Further, the court enjoined Ms. Duso from owning, possessing, or breeding dogs except those kept as personal pets.

Available Documents:

D.  Nuisance

1.  Powers v. Tincher - This case raised three causes of action:  loss of quiet enjoyment, trespass, and intentional infliction of emotional distress.  While plaintiff’s complaint and demand focus on the threats and alleged actions of trespass by defendants, the Common Pleas Court’s decision focuses instead on the defendant’s request for injunctive relief based on a nuisance violation.  Specifically, defendants alleged that plaintiff’s keeping of over one hundred roosters allegedly bred for fighting constituted a private nuisance.  Relying on a case of similar facts, the court held that plaintiffs’ keeping of over one hundred roosters for the purpose of cockfighting constituted a private nuisance. 

Available Documents:

V.  Estate Planning and Custody of Pets

A.  Estate Planning

1.  In re: Estate of Howard Brand - This Vermont case considers the effectiveness of a clause in a testator’s will that directs his executor to destroy any animals that he owns at the time of his death (apparently four horses and a mule here).  An unincorporated association entitled, “The Coalition to Save Brand’s Horses” was formed in response to this unusual post-mortem request, and sought to intervene in the lawsuit.  In a clear case of first impression in Vermont, the Chittenden County Court held that the clause as set forth in Brand’s last codicil mandating the destruction of his animals is void as contrary to public policy.  Further, the court considered the unique status of animals, especially those who are considered companion animals in our society.    

Available Documents:

B.  Custody Agreements Involving Pets

1.  DeSanctis v. Hurley Pritchard - Petition for Allowance of Appeal, 2002 - Pennsylvanaia case where plaintiff sought enforcement of contract with ex-spouse for sharing possession of dog. Lower court refused to enforce agreement saying that dogs were just property and shared possession was not possible.

VI.  Federal Actions under the Administrative Procedures Act

ALDF v. Veneman - This action concerns a lawsuit filed by the Animal Legal Defense Fund (ALDF), et al, over the lack of action by the federal agency, the Animal & Plant Health Inspection Service (APHIS) to adopt a policy on what constitutes appropriate conditions for primates in federally licensed or registered facilities.  Specifically, the complaint alleges that the Animal and Plant Health Inspection Service (APHIS) of the United State Department of Agriculture failed to make a final decision concerning the defendants' proposed “Policy On Environment Enhancement For Nonhuman Primates.” See 64 Fed. Reg. 38,145 (July 15, 1999).

Available Documents:

Complaint (07/22/2003) (pdf file 58 KB)

Motion to Dismiss (11/19/2003) (pdf file 106 KB)

VII.  Sample Voir Dire Questions

A.  Voir Dire Questions (2002) - These are some sample voir dire questions.  One from a horse neglect case, one is from the "Noah's Arc Case."

VIII.  Vegan Rights

A.  Friedman v. Kaiser-Permanente - Brief arguing for veganism to be viewed as a religion in wrongful termination case.  Defendant-hospital informed the plaintiff that he would have to be vaccinated to secure permanent employment.  Plaintiff was a strict vegan who objected to any animal-derived products, including vaccines.

Available Documents:

 

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