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May News

  New Hampshire considers bill that adds cats to the law that requires motorists who hit dogs to file a report or notify the owner. New Hampshire’s law from 1977 requires motorists who hit a dog to report the collision to the dog’s owner or police within a reasonable time. According to an AP article, House Republican Rep. Daryl Abbas sponsored a bill (HB 174) that seeks to add cats to that legal requirement after his wife tragically found their 5-year-old cat dead on the road outside their home. While the absence of cats in the original law seems minor relative to other animal laws, it reflects the continued treatment of animals as mere property under the law. But the bill here aims to go even further, elevating the act of killing a beloved cat beyond damaging a lawn ornament (which would be reportable as property damage in New Hampshire). The bill so far has received no objections and support from both sides of the aisle. Other states have similar laws, including Connecticut, Maryland, Massachusetts, New York, and Rhode Island.

  New York Court of Appeals agrees to hear habeas corpus case for "Happy" the Elephant housed at the Bronx Zoo. The New York Court of Appeals - the highest court in New York state - agreed on May 4th to hear the habeas corpus case for Happy, an elephant kept at the Bronx zoo for more than 40 of her 50 years. This the first time in an English-speaking country that a state's highest court will hear a habeas proceeding on behalf of a non-human animal. Happy has been housed in a solitary setting from other elephants since 2006. Steve Wise, Attorney and President of the Nonhuman Rights Project, stated that he hopes Happy "will soon become the first elephant and nonhuman animal in the US to have her right to bodily liberty judicially recognized" and that the Court will approve Happy's relocation to an elephant sanctuary. This is not the first time a habeas petition has been filed on behalf of a nonhuman animal. Read previous legal materials involving actions on behalf of chimpanzees.

   Approaching summer heat means more emergency calls on dogs being left in hot cars. Currently, 31 states have laws that specifically address dogs and sometimes other domestic animals being left unattended in motor vehicles during dangerous weather conditions. A simple Internet search reveals stories of animals being rescued from overheated vehicles beginning around this time of year (in late April, Sarasota, FL police broke a window and rescued “Moose” the dog from an unattended car that had reached 111 degrees). About half of the states with laws have what can be termed “Good Samaritan” rescue laws, meaning any person can rescue an animal in imminent danger after following the steps required by law without fearing civil or criminal liability for property damage. The remaining states leave the rescue of animals up to first responders and law enforcement. Where does your state stand on these laws? Check out this map to find out!

News archives

Cases

Lower court did not err in allowing an amended answer to include pleading of affirmative defense in shooting of dog, but it did improperly grant summary judgment when it weighed credibility of evidence of dog harassing horses. Estis v. Mills, --- So.3d ----, 2021 WL 1396598 (La.App. 2 Cir. 4/14/21). The Estis' sued the Mills for the wrongful killing and disposal of the Appellants’ German Shepherd. On appeal, the Appellants argue that the district court erred in permitting the Appellees to amend their original answer to now include an affirmative defense of immunity pursuant to La. R.S. 3:2654, which would relieve the Appellees of liability. Further, the Appellants contend that the district court erred in granting the Appellees’ motion for summary judgment. The parties were neighbors whose property was separated by an enclosed pasture where the Mills used to keep horses. Despite requests from Mills, the Estis' dogs would enter the pasture and harass the horses. In 2017, Mills discovered the dog yet again in the pasture with the horses, so Mr. Mills shot, killed, and disposed of the dog. Subsequently, the Estis family filed suit seeking damages for the intentional killing of the dog and disposing of the dog in a bayou approximately ten miles away. The lower court granted a motion in favor of the Mills agreeing that they had immunity from suit under La. R.S. 3:2654.1. On appeal to this court, the Estises argue that the Mills waived the immunity under the statute because they failed to affirmatively plead the defense in their answer to the pleadings. The lower court gave the Mills received permission to amend their answer and plead the immunity provision. This court found no evidence that there was bad faith in the decision to the amend the pleadings like delay. As to Estis' claim that summary judgment was erroneously granted, this court found that the lower court judge's statements that, in effect, weighed the credibility of the photograph versus the testimony of the witness were inappropriate. Thus, the lower court erred in granting the motion for summary judgment. Finally, the court evaluated Estis' conversion claims for the disposal of the dog's dead body. This court said that, [i]f the court finds that the killing of the dog falls under La. R.S. 3:2654, then the claim for conversion of the dog's body does not survive. Thus, the trial court's judgment to allow the motion to amend the pleadings was affirmed, the granting of the summary judgment was reversed, and the dismissal of Estis' claims for conversion was reversed and remanded for further proceedings.

Appellants “voluntary” expenditure of time and resources did not give rise to standing in suit against state officials for failing to enforce animal shelter laws. Kasey v. Beshear, --- S.W.3d ----, 2021 WL 1324395 (Ky. Ct. App. Apr. 9, 2021). Appellants Teresa's Legacy Continues, Inc., a non-profit organization of concerned citizens and taxpayers in Kentucky, sued the Governor and Commissioner of Agriculture alleging failure to monitor or enforce compliance with animal shelter statutes (KRS3 Chapter 258, Animal Control and Protection). The appellants contend that in 120 of Kentucky's counties, only 12% are in compliance with the statutes and over 50% are in violation of at least three statutes. In lieu of filing an answer, the appellants filed a motion to dismiss based largely on appellants' lack of standing. The circuit court dismissed the complaint for lack of standing in 2018 and this appeal followed. On appeal, this court held that the failure to enforce Kentucky laws is not the particularized injury contemplated under the Lujan test. In fact, the court declined to expand the doctrine of standing to include an injury based on the appellants voluntary expenditure of personal time and resources to care for abandoned animals when they were under no legal obligation to do so. As to the asserted taxpayer standing, the court found that appellants failed to allege in circuit court that funds were being illegally expended and thus, could not consider this argument for the first time on appeal. Further, the animal shelter statutes at issue require only that the Governor and Commission of Agriculture disburse the funds and had no control over the oversight of funding. Lastly, the court acknowledged that while appellants have attempted to show standing via citizen and taxpayer status, Kentucky law has not previously considered that avenue. Affirmed.

City’s petition for declaratory judgment to euthanize two dogs after attack can proceed under city or state law without conflict, and failure to comply with Department of Health notification required by statute was harmless. City of Onida v. Brandt, --- N.W.2d ----, 2021 WL 1681818 (S.D., 2021). The City of Onida (the City) filed a petition for declaratory judgment seeking authorization from the circuit court to euthanize two dogs owned by the Appellants as “vicious animals” under Onida ordinances or, alternatively, based upon a determination that the dogs were dangerous under state law (SDCL 7-12-29). The circuit court concluded the City could not require the dogs to be euthanized under the ordinance but found that the requirements of SDCL 7-12-29 were met. Appellants appeal the circuit court's order directing the Sheriff to dispose of the dogs pursuant under state law. In 2020, the appellants' dogs attacked a neighbor's smaller dog just outside of the neighbor's door to their home. The attack caused numerous bite wounds and internal injuries to the smaller dog who eventually died. Prior to this event, there were two other incidents. The court found Appellants violated SDCL 40-34-2 by owning a “dog that chases, worries, injures, or kills any ... domestic animal ....” The court further found under the Ordinance that the dogs were improperly unleashed and running at large within city limits and that the dogs were “vicious animals.” However, the court determined the City could not require Appellants to euthanize the dogs under the Ordinance because no “vicious animal” notice had been given to Appellants prior to the fatal attack on the neighbors’ dog. However, the court found that Appellants’ dogs were dangerous under SDCL 7-12-29 and authorized the Sheriff to dispose of the dogs. The circuit court stayed the order pending this appeal. On appeal, the appellants challenge the City's authority to request that the Sheriff dispose of the dogs under SDCL 7-12-29 after the circuit court denied such relief under the Ordinance. Appellants claim that the court improperly used a "hybrid" application of both state and local law. This Court disagreed, finding that appellants presented no authority that the sheriff could not act under state law as opposed to city law. Appellants’ second argument is that circuit court erred by entering an order to permit the Sheriff to dispose of the dogs under the statute without first requiring consultation with the Department of Health for the purpose of rabies control. While the text of SDCL 7-12-29 includes a formal consultation requirement, the Court found this error to be harmless. The Court affirmed the judgment of the circuit court ordering that “the Sheriff may now dispose of [Appellants’ two dogs] through humane euthanasia.”

Case Archives

Articles

From Factory Farming to A Sustainable Food System: A Legislative Approach, Michelle Johnson-Weider, 32 Geo. Envtl. L. Rev. 685 (2020).

Backyard Breeding: Regulatory Nuisance, Crime Precursor, Lisa Milot, 85 Tenn. L. Rev. 707 (2018).

When Fido is Family: How Landlord-Imposed Pet Bans Restrict Access to Housing, Kate O'Reilly-Jones, 52 Colum. J.L. & Soc. Probs. 427 (Spring, 2019).

Does Every Dog Really Have Its Day?: A Closer Look at the Inequity of Iowa's Breed-Specific Legislation, Olivia Slater, 66 Drake L. Rev. 975 (2018).