Full Title Name:  2008 - 2009 Significant Animal Law Cases

Share |
Rebecca F. Wisch Place of Publication:  Michigan State University College of Law Publish Year:  2009 Primary Citation:  Animal Legal & Historical Center

This table provides a summary of the significant animal law cases from 2008 and early 2009. The federal cases are listed first followed by the state cases, which are listed alphabetically by case name.


Case Name




Californians for Humane Farms v. Schafer



Slip Copy, 2008 WL 4449583 (N.D.Cal.)


Plaintiff, a nonprofit ballot committee established to sponsor Proposal 2 (prohibiting the tethering and confinement of egg laying hens), brought an action against Defendant-USDA alleging a violation of the APA after Defendant approved a decision by the American Egg Board to set aside $3 million for a "consumer education campaign." The District Court granted Plaintiff’s motion for preliminary injunction, finding that Plaintiff demonstrated a likelihood of success on the merits. The Court further found that an influx of $3 million in illegal funds to support anti-Proposal 2 efforts would cause direct harm to Plaintiff.



Center for Biological Diversity v. Kempthorne



Slip Copy, 2008 WL 4543043 (N.D.Cal.)




Plaintiffs brought action alleging multiple violations of the ESA, the APA, and NEPA pursuant to Defendants’ final rule designating the polar bear as threatened and promulgation of a special rule under section 4(d) of the ESA, allowing certain activities with respect to the polar bear that might otherwise be prohibited. The District Court, N.D. California denied the motion to transfer the case to the District of Alaska, mostly due to the fact that several Plaintiffs reside in California and/or hold offices in California. The Court also took into consideration that although Alaska arguably has more interest as the only state in which polar bears reside, citizens of other states have an interest in ensuring the survival of threatened and endangered species.



Folkers v. City of Waterloo, Iowa



582 F.Supp.2d 1141 (N.D. Iowa,2008) 2008 WL 4703392




Plaintiff brought civil rights action against the City of Waterloo, Iowa alleging procedural and substantive due process violations after Animal Control Officers seized Plaintiff’s dog and detained the dog for 100 days while an appeal was pending. On Plaintiff’s motion for partial summary judgment, the District Court found that the Animal Control Officers were acting under color of state law when they seized and continued to detain the dog and that the one hundred day detention of was a meaningful interference with Plaintiff’s possessory interest in his dog. However, the Court determined that Plaintiff’s right to procedural due process under the Fourteenth Amendment was satisfied by the post-deprivation hearing provided.



Fund for Animals v. Kempthorne



 538 F.3d 124, 2008 WL 3542887 (C.A.2 (N.Y.))



The Fund for Animals and others brought an action challenging a public resource depredation order (PRDO) issued by the U.S. Fish and Wildlife Service concerning  a migratory bird known as the double-crested cormorant. The Second Circuit affirmed the grant of summary judgment, finding that the depredation order did not violate MBTA because the Order restricts the species, locations, and means by which takings could occur, thereby restricting the discretion exercised by third parties. 



   U.S. v. Stevens  


533 F.3d 218, 2008 WL 2779529 (C.A.3 (Pa.) 2008)


The Third Circuit held that 18 U.S.C. § 48, the federal law that criminalizes depictions of animal cruelty, is an unconstitutional infringement on free speech rights guaranteed by the First Amendment. Because the statute addresses a content-based regulation on speech, the court considered whether the statute survived a strict scrutiny test. The majority was unwilling to extend the rationale of Ferber outside of child pornography without direction from the Supreme Court.  The majority found that the conduct at issue in § 48 does not give rise to a sufficient compelling interest. The court also stated that a compelling interest must relate to the well-being of humans, not animals. The court found that the desensitization of individuals to act of cruelty does not rise to the level of supporting this compelling interest.



Viilo v. Eyre



547 F.3d 707, 2008 WL 4694917 (C.A.7 (Wis.) 2008)




Virginia Viilo sued the City of Milwaukee and two of its police officers under 42 U.S.C. § 1983 after an officer shot and killed her dog 'Bubba.' The district court denied the defendants' motion for summary judgment on the basis of qualified immunity and the defendants took an interlocutory appeal. The court found that defendants' interjection of factual disputes deprived the court of jurisdiction. Testimony indicated that an officer followed the whimpering dog after it had been initially shot to shoot it again with a shotgun. The court, in aligning itself with other circuits, held that it is a violation of the Fourth Amendment for a police officer to shoot and kill a companion dog that poses no imminent danger.



    Allen v. Cox   


942 A.2d 296 (Conn. 2008)


The plaintiff brought this action against the defendants alleging that she was injured by the defendants' cat after the defendants negligently allowed the cat to roam free (the cat attacked plaintiff's cat and subsequently injured plaintiff when she broke up the fight). The trial court rendered summary judgment for the defendants. This court held that when a cat has a propensity to attack other cats, knowledge of that propensity may render the owner liable for injuries to people that foreseeably result from such behavior such as protecting their own cats from an attack.



Augillard v. Madura



257 S.W.3d 494, 2008 WL 2468689 (Tex.App.-Austin,2008)




This appeal arises from a suit for conversion filed by Augillard alleging that Madura wrongfully exercised dominion and control over Augillard's black cocker spaniel who was recovered in the wake of the Hurricane Katrina. The central issue at trial and the only disputed issue on appeal is whether Augillard's dog and the dog that Madura adopted from New Orleans ("Hope") are in fact the same dog. Augillard asserted that the trial court erred in disregarding conclusive evidence, including forensic DNA analysis. The appellate court concluded that the evidence showing Madera was the owner was legally insufficient, and reversed in favor of Augillard.



Bushnell v. Mott



254 S.W.3d 451, 2008 WL 820680 (Tex.,2008)


Plaintiff (Bushnell) brought an action against the defendant (Mott) for her injuries sustained when defendant's dogs attacked plaintiff in defendant's home. When Mott opened the door, her three dogs pushed open the door and rushed out, where they attacked Bushnell. Bushnell claimed that Mott made no attempt to stop the attack, and did not assist plaintiff after the attack. The Texas Supreme Court reversed, and held that the owner of a dog not known to be vicious owes a duty to attempt to stop the dog from attacking a person after the attack has begun, and Mott's behavior after the attack had begun raises an issue of material fact whether Mott failed to exercise ordinary care over her dogs.



Com. v. Kneller



---A.2d---, 2009 WL 215322 (Pa.Super.)




Defendant appealed a conviction for criminal conspiracy to commit cruelty to animals after Defendant provided a gun and instructed her boyfriend to shoot and kill their dog after the dog allegedly bit Defendant’s child. The Superior Court of Pennsylvania reversed the conviction, finding the relevant animal cruelty statute to be ambiguous, thus requiring the reversal under the rule of lenity. A dissenting opinion argued that although the statute is unambiguous as to whether a dog owner may destroy his or her dog by use of a firearm, no evidence was presented other than Defendant’s own self-serving testimony that the dog in fact bit the child.



Custer v. Coward


667 S.E.2d 135, 2008 WL 3551225 (Ga.App.,2008)


Plaintiffs appeal the trial court's granting of summary judgment in favor of defendants. The plaintiffs' 5-year-old child was bitten by the defendants' dog while the plaintiffs were visiting the defendants. While jumping on the defendants' trampoline, the plaintiffs' child fell onto the defendants' dog who bit the child on the leg. Plaintiffs' argument is based on testimony surrounding the veterinarian's diagnosis that some dogs with Wobbler's Syndrome become aggressive from pain. The court held that was no reason for the defendants to believe that the dog's leg condition would make it more apt to attack humans.



Harris v. Anderson County Sheriff's Office



673 S.E.2d 423, 2009 WL 294756 (S.C.,2009)


The court considered the meaning of the term "or" in the state's dog bite statute, SC ST 47-3-110, and whether that word allows a plaintiff to pursue a statutory claim against the owner of the dog while that dog is in the care of another. Here, a veterinary assistant sued a county sheriff's officer after she was bitten by a police dog while the dog was kenneled at the veterinary clinic. The Supreme Court stated: "Strict liability is a policy decision to impose liability regardless of fault. Relieving the dog owner of liability where the dog was in the care or keeping of another would be contrary to the statutory language and run counter to the manifest legislative intent of strict liability." The Court concluded that the Legislature intended to allow a claim against the owner of the dog when another person has the dog in his care or keeping.



Hoffa v. Bimes



954 A.2d 1241, 2008 WL 3126320 (Pa.Super.,2008)



This appeal arises from plaintiff's claim that the trial court erred in granting a compulsory non-suit in favor of defendant finding that the Veterinary Immunity Act bars claims against veterinarians except those based upon gross negligence. This court agreed with the lower court that Dr. Bimes was confronted with an emergency medical condition such as to fall under the protections of the Act. Further, this court held that the trial court committed no error in concluding that Hoffa's consent was not required before Dr. Bimes performed the abdominal tap because that procedure was rendered under an 'emergency situation.'



Kanab City v. Popowich



194 P.3d 198, 2008 WL 4260702 (Utah App.,2008)




Defendant appealed the decision of the district court finding him guilty on four counts of failing to maintain a city dog license and one count of running an illegal kennel. On appeal, defendant argued that the city ordinance on which his conviction for operating an illegal kennel is based is unconstitutionally vague. This court disagreed, finding that an ordinary person reading the ordinance would understand that, in order to keep more than two dogs over the age of three months in the same residence, a citizen must register for a kennel permit.



LaPlace v. Briere



962 A.2d 1139, 2009 WL 62875 (N.J.Super.A.D.,2009)




A horse owner brought an action against the person who exercised his horse while the horse was being boarded at the defendant's stable. While the stable employee was "lunging" the horse, the horse reared up, collapsed on his side with blood pouring from his nostrils, and then died. The lower court entered summary judgment in favor of defendants. On appeal, the court held that the person who exercised horse could not be liable under the tort of conversion as she did not exert such control and dominion over the horse when lunging it that she seriously interfered with plaintiff's ownership rights in the horse. Moreover, the exerciser's conduct was done in good faith and there was no causal connection between her conduct and the destruction of the horse.



Leith v. Frost


899 N.E.2d 635, 2008 WL 5473300 (Ill.App. 4 Dist.,2008)



Plaintiffs sued defendant for tortious damage to their personal property, a dachshund named Molly. The trial court found in plaintiffs' favor with an award of $200, Molly's fair market value, rather than the $4,784 in veterinary expenses. On appeal, this Court stated that a reasonable person in defendant's position should have reasonably foreseen that if his dogs escaped and seriously injured plaintiffs' pet, plaintiffs would feel obligated to pay more than a nominal amount for veterinary care. While the court recognized fair market value is the traditional ceiling for damage to personal property, the Court specifically adopted the rationale of the Kansas case of   Burgess v. Shampooch Pet Industries, Inc.     



Parker v. Parker



195 P.3d 428, 2008 WL 4570581 (Or.App.,2008)




Plaintiff and his 12 year-old quarter horse were visiting defendant at defendant's property when defendant's dog rushed at the horse causing it to run into a steel fence. The horse suffered severe head trauma, which necessitated its later euthanization. Plaintiff filed suit for damages asserting liability O.R.S. 609.140(1) - the statute that allows an owner to recover double damages where livestock is injured due to being injured, chased, or killed by another person's dog. The appellate court stated that "we previously determined that 'chasing' requires no predatory intent, and that 'injuring' requires no contact between the dog and the livestock . . ."



People v. Haynes



760 N.W.2d 283, 2008 WL 4365966 (Mich.App.,2008)



Defendant pleaded no contest to committing an “abominable and detestable crime against nature” with a sheep under MCL 750.158. The trial court found that defendant's actions evidenced sexual perversion, so the court ordered defendant to register under the Sex Offenders Registration Act (“SORA”). Defendant only appealed the propriety of the trial court's order requiring him to register as a sex offender. The Court of Appeals reversed the order, holding that while sheep was the “victim” of the crime, registration was only required if the victim was a human being less than 18 years old.



People v. Lewis



---N.Y.S.2d---2009 WL 530996 (N.Y.Sup.App.Term)




Defendants were charged in separate informations with multiple counts of injuring animals and failure to provide adequate sustenance. Plaintiff appealed the lower court’s decision to grant Defendants’ motion to suppress evidence obtained when a special agent of the ASPCA approached one of the defendants at his home upon an anonymous tip and inquired about the condition of the animals while the incident was videotaped by a film crew for a cable television show. The Supreme Court reversed the lower court’s decision, finding defendant voluntarily consented to the search and was not in custody or under arrest at the time of the search.







Share |