Dogs: Related Cases

In this California case, a dog bite victim sued a landlord, alleging premises liability in landlord's failure to guard or warn against tenants' dangerous dog.  On appeal from an order of summary judgment in favor of the landlords, the Court of Appeal held that the landlord owed no duty of care, as he had no actual knowledge of dog's dangerous propensities and an expert witness's declaration that the landlord should have known of the dog's vicious propensities was insufficient to warrant reconsideration of summary judgment ruling.  The landlord's knowledge that tenants may have a dog because it is allowed through a provision in the lease is insufficient to impute liability where the landlord has no knowledge of any previous attacks or incidents.

In a replevin action to recover possession of a lost dog from its finder, the court reversed and remanded the case so a jury could determine whether the statute of limitations was tolled due to the defendant's alleged fraudulent concealment of his possession of the dog.

This case involved a petition by LaVeda Kovar, et al against the City of Cleveland to obtain an order to restrain the City from disposing of dogs impounded by the City Dog Warden by giving or selling them to hospitals or laboratories for experimental and research purposes.  The Court of Appeals held that the City of Cleveland, both by its constitutional right of home rule and by powers conferred on municipal corporations by statute, had the police power right to provide that no dog should be permitted to run at large unless muzzled, and any dog found at large and unmuzzled would be impounded.  Further, by carrying out the mandate of the city ordinance by disposing of these impounded dogs was simply the performance of a ministerial or administrative duty properly delegated to Director of Public Safety.

In this Texas case, the appellant-landlord appealed a verdict that found him negligent for injuries suffered by a child visiting a tenant's residence. The lower court found the tenant and landlord each 50% liable for the girl's injuries. The Court of Appeals, in an issue of first impression, if a landlord has actual knowledge of an animal's dangerous propensities and presence on the leased property, and has the ability to control the premises, he or she owes a duty of ordinary care to third parties who are injured by this animal. In the present facts, the court found that Bantra had no duty of care because there was no evidence showing that Batra either saw the dog and knew that it was a potentially vicious animal or identified the dog's bark as the bark of a potentially vicious animal. The judgment was reversed.

In this Kentucky case, the plaintiffs brought an action against the county dog warden for shooting their dog. Before the statutorily imposed 7-day waiting limit had expired, the warden euthanized the dog by shooting him in the head. The Court of Appeals held that while a family dog can be beloved by a family, loss of the pet does not support an action for loss of consortium. Further, the dog warden was not liable for intentional infliction of emotional distress because his actions did not rise to the outrageous level where the dog was not shot in the presence of the family and there was no evidence that Brewer intended to inflict emotional harm.

The defendant in this case was convicted of animal cruelty for injuries his dog sustained after his dog bit him. Upon appeal, the court found that the prosecutor had erred by framing the argument in a manner that improperly shifted the burden of proof from whether the defendant had intentionally and maliciously inflicted injuries on the dog to whether the State's witnesses were lying. Since the court found this shift in burden was not harmless, the court reversed and remanded the defendant's conviction.

Seizure of pet dog violated Fourth Amendment where police acted unreasonably in going to canine police officer's house to seize the dog after the dog bit a child.

King County Animal Control issued an order requiring that Mansour to remove his dog from King County or give her up to be euthanized. On appeal, Mansour argued that the Board hearing violated his due process rights. The court of appeals agreed, finding that in order for Mansour, or any other pet owner, to effectively present his case and rebut the evidence against him, due process requires that he be able to subpoena witnesses and records.

This Kansas case presents an issue of first impression as to the proper measure of damages recoverable for injury to a pet dog.  The plaintiff's dog, a 13-year old dog of negligible market value, suffered a dislocated hip after being groomed at defendant's establishment.  The appellate court found the lower court's award of damages based on the veterinary bills was proper where the bills were not disputed and represented an easily ascertainable measure.  Specifically, the court held that  when an injured pet dog with no discernable market value is restored to its previous health, the measure of damages may include, but is not limited to, the reasonable and customary cost of necessary veterinary care and treatment. The court was unconvinced by defendant's "hyperbolic" claim that such an award would lead to a floodgate of high-dollar litigation on behalf of animals with low market values.

The Individuals with Disabilities Education Act (IDEA) offers federal funds to States in exchange for “free appropriate public education” (FAPE) to children with certain disabilities. The Act also establishes formal administrative procedures for resolving disputes between parents and schools. When trained service dog, Wonder, attempted to join Plaintiff E.F. in kindergarten, officials at Ezra Eby Elementary School refused. Plaintiff E.F. is a child with severe cerebral palsy; Wonder assists her with various daily life activities. E.F.'s parents, Plaintiffs Stacy and Brent Fry, removed E.F. from the school and filed a complaint with the Department of Education's Office for Civil Rights (OCR). The Plaintiffs claimed that the exclusion of E.F.'s service dog violated her rights under Title II of the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act. OCR agreed, and school officials invited E.F. to return to the school. Yet, the Plaintiffs filed suit in federal court against the Defendants, Ezra Eby's local and regional school districts, and the principal, (collectively, the school districts). In the federal suit, Plaintiffs alleged that the Defendants violated Title II and § 504 and sought declaratory and monetary relief. The Defendant school districts filed a motion to dismiss. The United States District Court for the Eastern District of Michigan granted the motion. The Plaintiffs appealed to the United States Court of Appeals for the Sixth Circuit where the District Court's motion to dismiss was affirmed. Certiorari was granted. The Supreme Court of the United States vacated and remanded. The Supreme Court held that, on remand, the Appeals Court should: (1) establish whether (or to what extent) the plaintiff parents invoked the IDEA's dispute resolution process before bringing this suit; and (2) decide whether Plaintiffs' actions reveal that the gravamen of their complaint is indeed the denial of FAPE. The court reasoned that Exhaustion of the IDEA's administrative procedures is unnecessary where the gravamen of the Plaintiffs' suit is something other than the denial of the IDEA's core guarantee of a FAPE.

In this California case, plaintiff noticed two women in the process of assisting an injured dog, which was owned by defendants, while driving down the road. Plaintiff, an experienced dog breeder and handler, assisted the women and was bitten by plaintiff's dog. The dog had not been vaccinated for rabies, and plaintiff was required to undergo antirabies treatment. Plaintiff sought appeal of the lower court's granting of summary judgment for the defendant. The Court of Appeal reversed. It held that defendants had the burden to establish that this was a case of primary assumption of the risk-where, by virtue of the nature of the activity and the parties' relationship to the activity, defendants owed no legal duty to plaintiff. The court held that the complaint alleged facts sufficient to impose a duty on the part of defendants, based on allegations that they owned and negligently controlled the dog that bit plaintiff.

Plaintiff's dog was killed by defendant after defendant set traps out on his farm to catch the dogs that had been injuring his sheep. There was no claim that plaintiff's dog was caught in the act of chasing or worrying sheep. There was testimony at trail that showed plaintiff's dog was a very valuable one, highly trained, and greatly efficient about the farm; some of the witnesses testifying that he was worth at least $200. The trial court instructed the jury that defendant had no right, under the circumstances shown, to trap and shoot the dog, and the case was submitted to the jury for it to find the value of the dog. This reviewing court found no error and affirmed the judgment for the value of the dog, which was above traditional market value.

In this case, Kennedy House appealed the lower court’s decision in finding that it had violated Section 9–1108 of the Philadelphia Fair Practice Ordinance when it denied Jan Rubin’s request for a housing accommodation in the form of a waiver of its no-dog policy. Rubin applied for a housing accommodation at Kennedy House because she suffered from multiple physical aliments. In a meeting with Kennedy House, Rubin did state that her dog was not a trained service animal that helped with her physical and mobility issues but rather helped with reminding her to take medication and getting out of bed. The lower court determined that Rubin had satisfied her burden of proving that her dog was necessary in helping with her medical issues. After reviewing the lower court’s decision, the Commonwealth Court held that the lower court had erred in its decisions. Ultimately, the court found that because Ms. Rubin's physician described a disability related to her mobility, and there was no evidence establishing a nexus between her mobility-related needs and the requested assistance animal, Ms. Rubin did not meet her burden necessary for Kennedy House to waive its no-dog policy. As a result, the court reversed the lower court’s decision.

Plaintiff brought a New York Small Claims Court action seeking recovery of the sum of $254.63, after a licensed veterinarian determined that plaintiff's newly purchased dog was unfit according to Article 35-B of the General Business Law.  Specifically, plaintiff sought damages under two alternate theories: violation of the sale contract's five-day express warranty and violation of the implied warranty of merchantability.  Due to the vet's initial diagnosis, plaintiff did not return the dog.  The court held that plaintiff elected to forgo the express warranty by retaining the dog.  With regard to the implied warranty of merchantability, the court found defendant is not a "person who deals in goods of the kind" to fall within the definition of merchant under the statute.

Defendant Luri appeals an injunction against her to return a foster dog that she failed to have spayed in accordance with an agreement between her and Take Me Home pet rescue organization. In finding that the trial court did not err in issuing the injunction, the court found that Take Me Home had a reasonable likelihood for success on the merits of its breach of contract claim because the original agreement was amended by a separate oral agreement that the dog would be spayed after recovering from a bout of mange. Further, in assessing the balance of harms, the court found that it favored Take Me Home. While Luri can either spay the dog or adopt a new one, the organization's "entire existence depends on its ability to place pets that it obtains from shelters in adoptive homes."

These two consolidated California appeals address the measure of damages for the wrongful injury to a companion animal. Both respondents filed motions in limine concerning the issue of damages in the cases and, in both case, the trial court limited the measure of damages to the market value of the dogs. On appeal, the appellants argued that the measure of damages should go beyond market value to cover the reasonable costs of the pets' treatment. The appellate court found the recent case of Kimes v. Grosser (2011) 195 Cal.App.4th 1556 (decided after these appeals were filed) persuasive (where the court held that a plaintiff can recover reasonable and necessary costs where a pet is wrongfully injured). The court reasoned that otherwise, the injured animal's owner would bear the burden of all the costs of treatment, regardless of the wrongdoer's conduct. Moreover, this ruling reflects a basic principle of tort law - to make a plaintiff whole again - and accords with the different way animals, as property, are treated in the criminal arena. Thus, the court agreed with Kimes that allowing a pet owner to recover reasonable and necessary costs related to the treatment of an animal wrongfully injured is an appropriate measure of damages.